-SMS (HC) Colbert v. Schulteis, No. 1:2010cv01532 - Document 15 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sandra M. Snyder on 5/27/2011 regarding 14 MOTION to DISMISS the 1 Petition for Writ of Habeas Corpus. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 7/5/2011. (Lundstrom, T)
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-SMS (HC) Colbert v. Schulteis Doc. 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 GEORGE K. COLBERT, 11 Petitioner, 12 v. 13 L. L. SCHULTEIS, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01532–LJO-SMS-HC FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 14, 1, 8) OBJECTIONS DEADLINE: THIRTY (30) DAYS 16 17 Petitioner is a state prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2254. 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 21 Rules 302 and 304. 22 motion to dismiss the petition, which was filed on March 25, 23 2011, and served on Petitioner on the same date. 24 No opposition to the motion to dismiss was filed. The matter has been referred to the Pending before the Court is Respondent’s (Doc. 14, 6.) 25 I. 26 Because the petition was filed after April 24, 1996, the Proceeding by Motion to Dismiss 27 effective date of the Antiterrorism and Effective Death Penalty 28 Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. 1 Dockets.Justia.com 1 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 2 1484, 1499 (9th Cir. 1997). 3 A district court may entertain a petition for a writ of 4 habeas corpus by a person in custody pursuant to the judgment of 5 a state court only on the ground that the custody is in violation 6 of the Constitution, laws, or treaties of the United States. 7 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 8 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 9 16 (2010) (per curiam). 10 28 Rule 4 of the Rules Governing Section 2254 Cases (Habeas 11 Rules) allows a district court to dismiss a petition if it 12 “plainly appears from the face of the petition and any exhibits 13 annexed to it that the petitioner is not entitled to relief in 14 the district court....” 15 The Ninth Circuit has allowed respondents to file motions to 16 dismiss pursuant to Rule 4 instead of answers if the motion to 17 dismiss attacks the pleadings by claiming that the petitioner has 18 failed to exhaust state remedies or has violated the state’s 19 procedural rules. 20 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 21 a petition for failure to exhaust state remedies); White v. 22 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 23 review a motion to dismiss for state procedural default); Hillery 24 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 25 Thus, a respondent may file a motion to dismiss after the Court 26 orders the respondent to respond, and the Court should use Rule 4 27 standards to review a motion to dismiss filed before a formal 28 answer. See, e.g., O’Bremski v. Maass, 915 F.2d 418, See, Hillery, 533 F. Supp. at 1194 & n.12. 2 1 In this case, Respondent's motion to dismiss addresses the 2 untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1) as 3 well as a lack of exhaustion of state court remedies. 4 material facts pertinent to the motion are mainly to be found in 5 copies of the official records of state administrative and 6 judicial proceedings which have been provided by Respondent and 7 Petitioner, and as to which there is no factual dispute. 8 Respondent has not filed a formal answer, and because 9 Respondent's motion to dismiss is similar in procedural standing The Because 10 to other motions to dismiss for state procedural default, the 11 Court will review Respondent’s motion to dismiss pursuant to its 12 authority under Rule 4. 13 II. 14 Here, Petitioner alleges that he was an inmate of the Background 15 California Correctional Institution at Tehachapi, California, 16 suffering a forfeiture of sixty (60) days of time credit imposed 17 after Petitioner was adjudicated guilty of committing a 18 disciplinary violation of being disrespectful toward staff. 19 (Pet. 1.) 20 disciplinary proceedings, he suffered violations of his rights to 21 due process and equal protection of the laws guaranteed by the 22 Fourteenth Amendment. 23 Petitioner argues that in the course of the (Pet. 4.) By order dated January 27, 2011, the Court severed an 24 additional claim in the petition that concerned a separate and 25 later disciplinary proceeding. 26 in a separate case. 27 28 (Doc. 8.) That claim was refiled Thus, the present petition concerns the earlier proceeding referred to in the petition, namely, IAB case no. 0813485, local 3 1 log. no. CCI-08-02744. (Pet. 9; Doc. 8, 10:23-28-11:1.) 2 Respondent correctly contends that the state court 3 proceedings referred to by Petitioner in his petition do not 4 relate to the disciplinary finding concerning disrespect for 5 staff; rather, they pertain to a later disciplinary violation in 6 December 2008. 7 38-52; Ex. 6, doc. 14-1, 53-54; Ex. 7, doc. 14-1, 55-56.) 8 Petitioner failed to submit any documentation of exhaustion of 9 the pertinent claim in response to the motion to dismiss. (Mot., Ex. 4, doc. 14-1, 36-37; Ex. 5, doc. 14-1, Thus, 10 record before the Court does not demonstrate exhaustion of state 11 court remedies. 12 III. 13 Respondent argues that the petition is untimely because The Limitations Period 14 Petitioner filed his petition in this Court outside of the one- 15 year limitation period provided for in 28 U.S.C. § 2244(d). 16 The AEDPA provides a one-year period of limitation in which 17 a petitioner must file a petition for writ of habeas corpus. 18 U.S.C. § 2244(d)(1). 19 proceedings for collateral review as a basis for tolling the 20 running of the period. 21 22 It further identifies the pendency of some As amended, subdivision (d) provides: (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 –- 23 24 (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; 25 26 27 28 (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; 28 4 1 2 3 (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 4 5 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 6 7 8 (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. 9 28 U.S.C. § 2244(d). 10 IV. Commencement of the Running of the Statutory Period 11 Pursuant to § 2244(d)(1)(A), the limitation period runs from 12 the date on which the judgment became final. Generally, under 13 § 2244(d)(1)(A), the “judgment” refers to the sentence imposed on 14 the petitioner. Burton v. Stewart, 549 U.S.147, 156-57 (2007). 15 However, in the present case, the decision that Petitioner 16 challenges is not a state court judgment, but rather the decision 17 of prison disciplinary authorities. 18 The one-year limitation period of § 2244 applies to habeas 19 petitions brought by persons in custody pursuant to state court 20 judgments who challenge administrative decisions, such as the 21 decisions of state prison disciplinary authorities. Shelby v. 22 Bartlett, 391 F.3d 1061, 1063, 1065-66 (9th Cir. 2004). However, 23 it is § 2244(d)(1)(D) that applies to petitions challenging 24 administrative decisions. Redd v. McGrath, 343 F.3d 1077, 1080 25 n.4 (9th Cir. 2003) (parole board determination). 26 Thus, the point at which an administrative decision becomes 27 final is the date on which the factual predicate of the claim or 28 5 1 claims presented could have been discovered through the exercise 2 of due diligence. 3 Redd, the pertinent date was the date on which notice of the 4 decision was received by the petitioner. 5 limitations was held to have begun running the day after notice 6 of the decision was received. 7 1066; Redd, 343 F.3d at 1082. 8 9 28 U.S.C. § 2244(d)(1)(D). In Shelby and Thus, the statute of Shelby v. Bartlett, 391 F.3d at Here, the decision concerns a rule violation report dated September 5, 2008, involving disrespect toward staff. (Pet. 9.) 10 The Director’s Level appeal decision that issued in Petitioner’s 11 administrative appeal of the disciplinary finding was dated 12 February 11, 2009. 13 California, the final level of administrative appeal was referred 14 to as the “Director's Level.” 15 § 3084.5(d); Brodheim v. Cry, 584 F.3d 1262, 1264-65 (9th Cir. 16 2009). 17 on February 11, 2009. (Pet. 9.) At all pertinent times in Cal. Code Regs., tit. 15, Thus, the final decision in Petitioner’s appeal was made 18 Respondent argues that this establishes that the statute 19 began running the next day, and Petitioner had until February 11, 20 2010, to file a timely federal petition. 21 Generally the statute of limitations is an affirmative 22 defense, and the party claiming the defense bears the burden of 23 proof unless the limitations statute is considered to be 24 jurisdictional. 25 541 F.3d 1189, 1197 (9th Cir. 2008); Payan v. Aramark Management 26 Services Ltd. Partnership, 495 F.3d 1119, 1122 (9th Cir. 2007). 27 The one-year statute of limitations on petitions for federal 28 habeas corpus relief by state prisoners is not jurisdictional and Kingman Reef Atoll Investments, L.L.C. v. U.S., 6 1 does not set forth an inflexible rule requiring dismissal 2 whenever the one-year clock has run. 3 130 S.Ct. 2549, 2560 (2010). 4 bears the burden of proving that the AEDPA limitations period has 5 expired. 6 (C.D.Cal. 2010) (collecting authorities). 7 Holland v.Florida, --U.S.–, Thus, under AEDPA, the respondent Ratliff v. Hedgepeth, 712 F.Supp.2d 1038, 1050 Here, the face of the record does not reflect when the final 8 decision in Petitioner’s administrative appeal was served on 9 Petitioner or when Petitioner received the decision. 10 The present case is thus different from both Redd and Shelby 11 because here, Petitioner does not concede that he received notice 12 of the final decision at any specific time or that he received 13 timely notice of the decision. 14 The Court notes that in some cases, there has been applied a 15 presumption that a final administrative decision was timely 16 delivered to, or received by, the petitioner. 17 Horel, No. CIV S-06-1314 FCD KJM P, 2007 WL 2344899, at *2 18 (E.D.Cal. Aug. 15, 2007). 19 certificate of service attached to the denial of the 20 administrative appeal, and the petitioner refused to concede that 21 he was properly served with the decision. 22 2344899 at *2. 23 petitions concerning his claim were in the record, and they 24 revealed a date upon which the petitioner there had represented 25 that he had exhausted state court remedies. Thus, the Court noted 26 that the petition before it demonstrated notice. 27 28 See, Valdez v. In Valdez v. Horel, there was no Valdez, 2007 WL However, in Valdez, the petitioner’s state court Id. Here, the record before the Court contains no state court decisions reflecting facts that would tend to show a date by 7 1 2 which the Petitioner had received the pertinent notice. Further, the record lacks any factual background concerning 3 the practices or conduct of prison staff with respect to delivery 4 of Director’s Level decisions or other procedures involved in 5 notifying prisoners of decisions. 6 with respect to the pertinent regulations or other state law 7 governing delivery of notice of such decisions. 8 concludes that even if application of a presumption might be 9 appropriate in some cases, the Court does not have before it in Likewise, there is no briefing The Court 10 the present case a reliable basis upon which to fashion any 11 presumption concerning receipt by Petitioner of the Director’s 12 Level decision. 13 The limitations period began to run in this case on the date 14 on which the factual predicate of the claim or claims presented 15 could have been discovered through the exercise of due diligence. 16 28 U.S.C. § 2244(d)(1)(D). 17 date on which Petitioner received notice of the final 18 administrative decision. 19 on which the factual predicate of the claim or claims presented 20 could have been discovered through the exercise of due diligence. 21 Respondent has not established the Thus, it cannot be determined the date The Court concludes that Respondent has failed to meet its 22 burden of establishing that the petition was filed outside of the 23 one-year statute of limitations. 24 25 Accordingly, it will be recommended that the motion to dismiss the petition on the ground of untimeliness be denied. 26 V. 27 Respondent argues that Petitioner failed to exhaust state 28 Failure to Exhaust State Court Remedies court remedies with respect to his claim or claims concerning the 8 1 disciplinary finding. 2 A petitioner who is in state custody and wishes to challenge 3 collaterally a conviction by a petition for writ of habeas corpus 4 must exhaust state judicial remedies. 5 The exhaustion doctrine is based on comity to the state court and 6 gives the state court the initial opportunity to correct the 7 state's alleged constitutional deprivations. 8 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 9 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 10 11 28 U.S.C. § 2254(b)(1). Coleman v. 1988). A petitioner can satisfy the exhaustion requirement by 12 providing the highest state court with the necessary jurisdiction 13 a full and fair opportunity to consider each claim before 14 presenting it to the federal court, and demonstrating that no 15 state remedy remains available. 16 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 17 1996). 18 was given a full and fair opportunity to hear a claim if the 19 petitioner has presented the highest state court with the claim's 20 factual and legal basis. 21 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 22 (1992), superceded by statute as stated in Williams v. Taylor, 23 529 U.S. 362 (2000) (factual basis). 24 Picard v. Connor, 404 U.S. 270, A federal court will find that the highest state court Duncan v. Henry, 513 U.S. 364, 365 Additionally, the petitioner must have specifically told the 25 state court that he was raising a federal constitutional claim. 26 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 27 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala 28 v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 9 1 133 F.3d 1240, 1241 (9th Cir. 1998). 2 States Supreme Court reiterated the rule as follows: 3 4 5 6 7 8 9 10 In Duncan, the United In Picard v. Connor, 404 U.S. 270, 275...(1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct’ alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 11 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 12 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 13 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 14 Cir. 2001), stating: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See, Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is "self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7... (1982)), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds, see, e.g., Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); Crotts, 73 F.3d at 865. ... In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is. Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 10 1 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2 2001). 3 Where none of a petitioner’s claims has been presented to 4 the highest state court as required by the exhaustion doctrine, 5 the Court must dismiss the petition. 6 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 7 481 (9th Cir. 2001). 8 petition in abeyance pending exhaustion of the unexhausted claims 9 has not been extended to petitions that contain no exhausted 10 11 claims. Raspberry v. Garcia, 448 The authority of a court to hold a mixed Raspberry, 448 F.3d at 1154. Here, Respondent has submitted with the motion to dismiss 12 copies of the petitions that Petitioner alleged he had submitted 13 to state courts with respect to his claims. 14 none of the petitions reflects exhaustion of the claim concerning 15 the September 2008 disrespect toward staff. 16 As Respondent notes, Although non-exhaustion of remedies has been viewed as an 17 affirmative defense, it is the petitioner’s burden to prove that 18 state judicial remedies were properly exhausted. 19 § 2254(b)(1)(A); Darr v. Burford, 339 U.S. 200, 218-19 (1950), 20 overruled in part on other grounds in Fay v. Noia, 372 U.S. 391 21 (1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 22 If available state court remedies have not been exhausted as to 23 all claims, a district court must dismiss a petition. 24 Lundy, 455 U.S. 509, 515-16 (1982). 25 28 U.S.C. Rose v. Here, Petitioner did not establish exhaustion of state court 26 remedies in the petition. 27 record of the state proceedings referred to in the petition, the 28 record did not show that Petitioner raised before the state Although the Respondent provided the 11 1 courts the challenge to the disciplinary finding that he raises 2 here. 3 motion, Petitioner has not availed himself of the opportunity to 4 establish exhaustion. 5 Further, although Petitioner was served with Respondent’s Therefore, it is concluded that Petitioner failed to meet 6 his burden to establish exhaustion of state court remedies. 7 Accordingly, it will be recommended that the motion to 8 dismiss the petition for failure to exhaust state court remedies 9 be granted. 10 VI. Certificate of Appealability 11 Unless a circuit justice or judge issues a certificate of 12 appealability, an appeal may not be taken to the court of appeals 13 from the final order in a habeas proceeding in which the 14 detention complained of arises out of process issued by a state 15 court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 16 322, 336 (2003). 17 if the applicant makes a substantial showing of the denial of a 18 constitutional right. 19 petitioner must show that reasonable jurists could debate whether 20 the petition should have been resolved in a different manner or 21 that the issues presented were adequate to deserve encouragement 22 to proceed further. 23 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 24 certificate should issue if the Petitioner shows that jurists of 25 reason would find it debatable whether the petition states a 26 valid claim of the denial of a constitutional right and that 27 jurists of reason would find it debatable whether the district 28 court was correct in any procedural ruling. A certificate of appealability may issue only § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 12 A Slack v. McDaniel, 1 2 529 U.S. 473, 483-84 (2000). In determining this issue, a court conducts an overview of 3 the claims in the habeas petition, generally assesses their 4 merits, and determines whether the resolution was debatable among 5 jurists of reason or wrong. 6 applicant to show more than an absence of frivolity or the 7 existence of mere good faith; however, it is not necessary for an 8 applicant to show that the appeal will succeed. Id. It is necessary for an Id. at 338. 9 A district court must issue or deny a certificate of 10 appealability when it enters a final order adverse to the 11 applicant. 12 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 13 debate whether the petition should have been resolved in a 14 different manner. 15 of the denial of a constitutional right. 16 17 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 18 VII. 19 Accordingly, it is RECOMMENDED that: 20 1) 21 22 23 24 25 26 27 28 Recommendations Respondent’s motion to dismiss the petition as untimely be DENIED; and 2) Respondent’s motion to dismiss the petition for failure to exhaust state court remedies be GRANTED; and 3) The petition be DISMISSED without prejudice for failure to exhaust state court remedies; and 4) The Court DECLINE to issue a certificate of appealability; and 5) The Clerk be DIRECTED to close the case because an order 13 1 of dismissal would terminate the action in its entirety. 2 These findings and recommendations are submitted to the 3 United States District Court Judge assigned to the case, pursuant 4 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 5 the Local Rules of Practice for the United States District Court, 6 Eastern District of California. 7 being served with a copy, any party may file written objections 8 with the Court and serve a copy on all parties. 9 should be captioned “Objections to Magistrate Judge’s Findings Within thirty (30) days after Such a document 10 and Recommendations.” 11 and filed within fourteen (14) days (plus three (3) days if 12 served by mail) after service of the objections. 13 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 14 636 (b)(1)(C). 15 objections within the specified time may waive the right to 16 appeal the District Court’s order. 17 1153 (9th Cir. 1991). Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 18 19 IT IS SO ORDERED. 20 Dated: icido3 May 27, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 14
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