Opinion
No. 2:13-cv-0330 MCE CKD P
2013-09-25
LESTER HAMILTON, Petitioner, v. RICK HILL, Respondent.
FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. He is serving a sentence of seven years-to-life imprisonment imposed in 1972 for first degree murder. In 1979, petitioner was found suitable for parole and a parole date of December 28, 1989 was established. However, on June 5, 1987, the parole board rescinded petitioner's parole date for what petitioner terms a "non-criminal rules infraction." In the only claim in his petition that makes sense, petitioner asserts that California law at the time his parole date was rescinded dictated that a new date be set within six months and that did not occur. Respondent has filed a motion to dismiss arguing that any claim in this respect is time-barred.
The statute of limitations applicable to this action may be found at 28 U.S.C. § 2244(d)(1). Normally, the limitation period applicable to this action would have begun to run under § 2244(d)(1)(D) on December 5, 1987 when the factual predicate of petitioner's claim (that a new release date had not been set within six months of rescission) became apparent. However, since that happened well before the statute of limitations was enacted, the limitations period began to run on the day of enactment; April 24, 1996. See Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997). Because there is no basis to toll the limitations period, it then ran out one year later, well before this action was filed earlier this year. Accordingly, respondent's motion to dismiss should be granted and this case should be closed.
Furthermore, it is clear that petitioner is not entitled to habeas relief. He asserts that when his release date was rescinded in 1987, California Penal Code § 3041.5(b)(4) required that a new release date be established within six months. However, that provision was removed from § 3041.5(b)(4) in 1985, well before petitioner's release date was rescinded in 1987.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Respondent's motion to dismiss (ECF NO. 13) granted; and
2. This case be closed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant). Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE