Opinion
REPORT AND RECOMMENDATION OF UNITED STATE MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Cormac J. Carney, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on April 9, 2013, accompanied by exhibits ("Pet. Ex."). The Petition contains the single claim that the California Department of Corrections and Rehabilitation and/or California Board of Prison Terms assertedly failed to perform a sentence review pursuant to former California Penal Code section 1170(f) (Petition, attachment). Respondent filed a Motion to Dismiss on May 2, 2013, asserting that the Petition is untimely and procedurally defaulted. Petitioner filed a Reply on May 17, 2013.
Effective July 1, 2005, the Board of Prison Terms was abolished and replaced with the Board of Parole Hearings. See Cal. Penal Code § 5075(a). Although the Petition alleges that the California Department of Corrections and Rehabilitation ("CDCR") assertedly violated Petitioner's rights, the attachments thereto indicate that the Board of Parole Hearings and Board of Prison Terms, not the CDCR, engaged in the challenged conduct.
The "disparate sentence" statute upon which Petitioner relies, former California Penal Code section 1170(f)), was repealed in 1992. See Cal. Stats. 1992, c. 695 § 10(eff. Sept. 15, 1992). Section 1170(f) formerly required the Board of Prison Terms to review all determinate sentences within one year to determine whether a given sentence was disparate. People v. Allen , 42 Cal.3d 1222, 1286, 232 Cal.Rptr. 849, 729 P.2d 115 (1986), cert. denied, 484 U.S. 872 (1987). If a finding of disparity was made, the Board would notify the trial judge, who then would conduct a new sentencing hearing. Id .; see also People v. Weddle , 1 Cal.App.4th 1190, 1198 n.7, 2 Cal.Rptr.2d 714 (1991).
BACKGROUND
In 1986, in Los Angeles Superior Court case number A632071, Petitioner received a sentence of 105 years for various crimes including kidnapping, rape, robbery, and grand theft of an automobile (Petition, p. 2). On April 11, 1989, the California Court of Appeal reportedly reversed on one count, but otherwise affirmed the judgment with modifications (Petition, pp. 2-3). On July 12, 1989, the California Supreme Court denied Petitioner's petition for review (Petition, p. 2).
On April 7, 1988, the California Board of Prison Terms ("Board") sent Petitioner a letter stating that, during the disparate sentence review process, the Board had discovered an apparent legal error in Petitioner's case (Pet. Ex. 1). The letter stated that, because of the alleged error, the Board could not review the sentence for disparity pursuant to California Penal Code section 1170(f) (Pet. Ex. 1). The letter advised Petitioner to contact the Records Office Staff at his place of incarceration concerning the alleged error (Pet. Ex. 1). The record does not indicate whether Petitioner ever did so.
The California Supreme Court's docket, of which the Court takes judicial notice, shows that, on October 9, 1992, Petitioner filed a habeas corpus petition in the California Supreme Court, in In re King, case number S029186. The California Supreme Court denied the petition, which is not in the present record, on December 31, 1992.
The Court takes judicial notice of the dockets of the California Supreme Court and the California Court of Appeal reflecting Petitioner's habeas corpus petitions filed in those courts concerning Los Angeles County Superior Court case number A632071 (attached). See Porter v. Ollison , 620 F.3d 952, 954-55 n.1 (9th Cir. 2010) (taking judicial notice of court dockets).
On May 5, 1993, Petitioner filed a habeas corpus petition in this Court, challenging his 1986 conviction. See King v. White, CV 93-2607-RJK(E). On November 4, 1993, judgment was entered denying and dismissing the petition with prejudice. Petitioner filed a Notice of Appeal on December 4, 1993. On July 20, 1994, the United States Court of Appeals for the Ninth Circuit dismissed the appeal.
The Court takes judicial notice of Petitioner's habeas corpus petitions filed in this Court. See Porter. v. Ollison , 620 F.3d at 954-55 n.1.
The California Court of Appeal's docket, of which the Court has taken judicial notice, shows that, from 2002 through 2007, Petitioner filed a number of state habeas petitions concerning the conviction in Los Angeles County Superior Court case number A632071, none of which are in the record or are mentioned by the parties. On June 26, 2002, Petitioner filed a habeas corpus petition in the Court of Appeal, in case number B159595. The Court of Appeal denied this petition on August 12, 2002. On July 19, 2005, Petitioner filed a petition in the Court of Appeal in case number B184460, which the Court of Appeal denied on August 2, 2005. Petitioner filed another petition in the Court of Appeal on May 1, 2007, in case number B198573, which the Court of Appeal denied on May 18, 2007.
In the meantime, on February 5, 2003, Petitioner filed a second habeas corpus petition in this Court, in King v. Kramer, CV 03-829-CJC (E), which the Court dismissed without prejudice on May 27, 2003, as second or successive. Petitioner filed an application to file a second or successive petition in the United States Court of Appeals for the Ninth Circuit, which that court denied on February 14, 2005.
In or about April of 2010, Petitioner contacted the Board (see Pet. Ex. 2). The record does not contain this communication to the Board. The Board replied, stating that Petitioner previously had received a response on April 7, 1988, and advising Petitioner to discuss any questions with his counselor (Pet. Ex. 2).
On September 10, 2010, Petitioner filed a habeas corpus petition in the California Court of Appeal, in case number B227262, which concerned the conviction in Los Angeles County Superior Court case number A632071. The Court of Appeal denied the petition, which also is not in the record, on September 22, 2010.
On May 29, 2012, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court (see Pet. Ex. 3). The Superior Court denied the petition on the grounds that Petitioner had failed to exhaust available administrative remedies and that the Petition was untimely (Pet. Ex. 3). Petitioner filed a habeas corpus petition in the California Court of Appeal on August 24, 2012, which that court denied summarily on September 10, 2012 (Pet., p. 4; Pet. Ex. 4). Petitioner filed a habeas corpus petition in the California Supreme Court on October 29, 2012, which that court denied on January 3, 2013 with citations to In re Robbins , 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998), and In re Clark , 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993), signifying that the petition was untimely (Pet., p. 4-5; Pet. Ex. 5).
See Walker v. Martin , 131 S.Ct. 1120, 1124 (2011); Gaston v. Palmer , 417 F.3d 1030, 1036-37 (9th Cir. 2005), modified, 447 F.3d 1165 (9th Cir. 2006), cert. denied, 549 U.S. 1134 (2007); Bennett v. Mueller , 322 F.3d 573, 578-79 (9th Cir.), cert. denied, 540 U.S. 938 (2003).
DISCUSSION
The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
Petitioner's conviction became final on October 10, 1989, upon the expiration of 90 days from the California Supreme Court's July 12, 1989 denial of Petitioner's petition for review. See Jimenez v. Quarterman , 555 U.S. 113, 119 (2009) ("direct review cannot conclude for purposes of § 2244(d)(1)(A) until the availability of direct appeal to the state courts, [citation], and to this Court, [citation] has been exhausted"); Bowen v. Roe , 188 F.3d 1157, 1159 (9th Cir. 1999) (period of "direct review" after which state conviction becomes final for purposes of section 2244(d)(1) includes the 90-day period for filing a petition for certiorari in the United States Supreme Court). State habeas petitioners such as Petitioner, whose convictions became final prior to AEDPA's effective date, have a one-year "grace period" in which to file their petitions. See Rhoades v. Henry , 598 F.3d 511, 519 (9th Cir. 2010). Therefore, the statute of limitations began to run on April 25, 1996, unless subsections B, C, or D of 28 U.S.C. section 2244(d)(1) furnish a later accrual date. See Nino v. Galaza , 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000) (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge).
Section 2244(d)(1)(D) generally governs the accrual of a claim challenging an administrative decision affecting the fact or duration of an inmate's confinement, such as the claim at issue here. See Mardesich v. Cate , 668 F.3d 1164, 1172 (9th Cir. 2012) (challenge to California Youthful Offender Parole Board's order returning juvenile inmate to court for resentencing); Redd v. McGrath , 343 F.3d 1077, 1081-82 (9th Cir. 2003) (parole denial). Petitioner learned of the Board's refusal to review his sentence pursuant to former section 1170(f) in April of 1988, prior to AEDPA's enactment. Therefore, the statute began running on April 25, 1996, and expired on April 24, 1997. Petitioner filed the present Petition nearly sixteen years later. Absent sufficient tolling, the Petition is untimely.
Subsections B and C of section 2244(d)(1) do not apply in the present case.
Section 2244(d)(2) tolls the statute of limitations during the pendency of "a properly filed application for State post-conviction or other collateral review." The statute of limitations is not tolled between the conviction's finality and the filing of the first state court habeas petition, however. See Porter v. Ollison , 620 F.3d 952, 958 (9th Cir. 2010). Petitioner filed his first post-April 25, 1996 state court petition on June 26, 2002, over five years after the limitations period had expired. Even assuming arguendo this petition and Petitioner's subsequent state court petitions challenged the Board's alleged refusal to conduct a disparate sentence review, Petitioner's belated state court petitions cannot revive or otherwise toll the statute. See Ferguson v. Palmateer , 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Jiminez v. Rice , 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003) (filing of state habeas petition "well after the AEDPA statute of limitations ended" does not affect the limitations bar); Webster v. Moore , 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 (2000) ("[a] state-court petition... that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled"). Therefore, absent equitable tolling, the Petition is untimely.
AEDPA's statute of limitations is subject to equitable tolling "in appropriate cases." Holland v. Florida , 130 S.Ct. 2549, 2560 (2010) (citations omitted). "[A] petitioner' is entitled to equitable tolling' only if he shows (1) that he has been pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 2562 (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005); see also Lawrence v. Florida , 549 U.S. 327, 336 (2007). In the present case, Petitioner has shown no entitlement to equitable tolling. Petitioner plainly has not been diligent. The Petition is untimely.
In light of this determination, the Court need not, and does not, reach the procedural default issue raised by Respondent.
In his Reply, Petitioner contends that the present Petition constitutes a petition for a writ of mandamus seeking an order requiring the Board to conduct a disparate sentence review (Reply, p. "1"). This contention lacks merit. The Petition consists of a form habeas corpus petition accompanied by a supporting memorandum and exhibits, and expressly seeks habeas relief (see Petition, attached memorandum, p. 3). The habeas statute of limitations applies to the present Petition. See 28 U.S.C. § 2244. In any event, even if the Court were to construe the Petition as a petition for writ of mandamus, relief would be denied. This federal Court lacks jurisdiction to issue a writ of mandamus to compel state officials to conform their conduct to state law. See Pennhurst State School & Hosp. v. Halderman , 465 U.S. 89, 106 (1984); Mitchell v. Curry, 2010 WL 3386005, at *1 (N.D. Cal. Aug. 26, 2010) ("A petition for a writ of mandamus to compel a state court or official to take or refrain from some action is frivolous as a matter of law.") (citations omitted).
RECOMMENDATION
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.