(HC) Duran v. Davey, No. 1:2016cv00100 - Document 16 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS to Grant Respondent's 13 Motion to Dismiss and to Dismiss Petition for Writ of Habeas Corpus signed by Magistrate Judge Erica P. Grosjean on 08/29/2016. Referred to Judge O'Neill; Objections to F&R due by 10/3/2016.(Flores, E)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 PEDRO F. DURAN, 10 Case No. 1:16-cv-00100-LJO-EPG-HC Petitioner, 11 12 v. 13 FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT’S MOTION TO DISMISS AND TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS DAVEY, (ECF Nos. 1, 13) Respondent. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 17 pursuant to 28 U.S.C. § 2254. In his petition, Petitioner challenges the application of amended 18 California Penal Code section 2933.6 to him, arguing that it violates his plea agreement and the 19 Ex Post Facto Clause. The undersigned recommends granting Respondent’s motion to dismiss 20 because the instant petition was filed outside the one-year limitation period and is unexhausted. 21 I. 22 BACKGROUND Petitioner is currently in the custody of the California Department of Corrections and 23 24 Rehabilitation (“CDCR”). On January 4, 2010, Petitioner was convicted, pursuant to a plea, in 25 the Kings County Superior Court of assault with a deadly weapon and sentenced to an 1 26 imprisonment term of four years. (ECF No. 13-1 at 19). At the time of Petitioner’s offense and 27 conviction, California law permitted inmates housed in the security housing unit (“SHU”) who 28 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 1 1 were validated as prison gang associates to accrue good time credits. Cal. Penal Code § 2 2933.6(a) (2009). On January 25, 2010, the law was amended to deny credits to said inmates. 3 Nevarez v. Barnes, 749 F.3d 1124, 1126 (9th Cir. 2014) (per curiam). On March 3, 2011, Petitioner was validated as an associate of the Northern Structure 4 5 prison gang. (ECF No. 13-1 at 29). On October 29, 2013, Petitioner appeared before the 6 Institutional Classification Committee (“ICC”) for a SHU 180 Day Review. The ICC elected to 7 continue Petitioner’s work group/privilege group at D-2/D, zero-credit-earning status, due to 8 Petitioner being an associate of the Northern Structure prison gang. (ECF No. 13-1 at 45). 9 Petitioner’s administrative appeal was denied at the first and second levels of review. (Id. at 41– 10 43). Finally, on July 28, 2014, Petitioner’s administrative appeal was canceled at the third level 11 of review based on untimeliness because Petitioner failed to submit his appeal within 30 days of 12 his initial placement in work group/privilege group D-2/D, which occurred on March 3, 2011. 13 (Id. at 40). On August 22, 2014,2 Petitioner filed a state petition for writ of habeas corpus in the 14 15 Kings County Superior Court, which denied the petition on November 26, 2014. (ECF No. 13-1 16 at 2, 55–57). Thereafter, Petitioner filed a state habeas petition in the California Court of Appeal, 17 Fifth Appellate District, which denied the petition on February 25, 2015. (Id. at 69). On August 18 11, 2015, Petitioner filed a state habeas petition in the California Supreme Court, which denied 19 the petition on November 10, 2015.3 (Id. at 60, 85). On December 29, 2015, Petitioner filed the instant federal petition for writ of habeas 20 21 corpus, challenging the application of amended California Penal Code section 2933.6 to him as a 22 violation of his plea agreement and the Ex Post Facto Clause. (ECF No. 1). Petitioner requests 23 24 25 26 27 28 2 Pursuant to the prison mailbox rule, a pro se prisoner’s habeas petition is filed “at the time . . . [it is] delivered . . . to the prison authorities for forwarding to the court clerk.” Hernandez v. Spearman, 764 F.3d 1071, 1074 (9th Cir. 2014) (alteration in original) (internal quotation marks omitted) (quoting Houston v. Lack, 487 U.S. 266, 276 (1988)). See also Rule 3(d), Rules Governing Section 2254 Cases. The Court notes that Respondent applied the mailbox rule in the motion to dismiss. (ECF No. 13 at 2 n.2). 3 The California Courts website shows that the California Supreme Court denied the petition on November 10, 2015, with citation to People v. Duvall, 9 Cal. 4th 464, 474 (1995), and In re Miller, 17 Cal. 2d 734, 735 (1941). Appellate Case Information, California Courts, http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id =2118016&doc_no=S228674 (last updated Aug. 22, 2016). See Worthy v. Hartley, 2010 WL 1339215, *3 n.2 (E.D. Cal. Apr. 2, 2010) (“[T]he internet website for the California Courts, containing the court system's records for filings in the Court of Appeal and the California Supreme Court are subject to judicial notice.”). 2 1 that he be released on the date he would have been released under the previous version of section 2 2933.6 that was in place prior to January 25, 2010. (Id. at 15). On March 30, 2016, Respondent 3 filed a motion to dismiss, arguing that the petition is untimely and not fully exhausted. (ECF No. 4 13). 5 II. 6 DISCUSSION 7 A. Statute of Limitations 8 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 9 of 1996 (“AEDPA”). The AEDPA imposes various requirements on all petitions for writ of 10 habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); 11 Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed 12 after the enactment of the AEDPA and is therefore governed by its provisions. The AEDPA 13 imposes a one-year period of limitation on petitioners seeking to file a federal petition for writ of 14 habeas corpus. 28 U.S.C. § 2244(d)(1). Section 2244(d) provides in pertinent part: 15 16 17 18 19 20 21 22 (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 – ... (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. 23 28 U.S.C. § 2244(d). The Ninth Circuit has held that when a habeas petitioner challenges an 24 administrative decision, § 2244(d)(1)(D) applies and the AEDPA’s one-year limitation period 25 runs from when the factual predicate of the habeas claim could have been discovered through the 26 exercise of due diligence. Mardesich v. Cate, 668 F.3d 1164, 1172 (9th Cir. 2012). The Ninth 27 Circuit further held that “[a]s a general rule, the state agency’s denial of an administrative appeal 28 is the ‘factual predicate’ for such habeas claims.” Id. 3 Respondent asserts that Petitioner was aware of the factual predicate of his claims on 1 2 March 3, 2011, when the CDCR validated Petitioner as an associate of a prison gang. (ECF No. 3 13 at 3). It was at this time that Petitioner stopped earning good time credits pursuant to 4 California Penal Code section 2933.6(a). Respondent argues that because Petitioner’s 5 administrative appeal was canceled as untimely, there is no basis for deeming the CDCR’s 6 decision at the third level of review as the factual predicate for Petitioner’s claims. (Id.). The 7 Ninth Circuit has yet to address explicitly what constitutes the factual predicate of a habeas claim 8 when the petitioner did not timely request review of the administrative decision at issue. Some 9 district courts in this circuit have held that the limitation period begins to run from the date the 10 administrative decision was made rather than the date the untimely administrative appeal was 11 denied. See, e.g., Moreland v. Virga, No. 1:12-cv-0561 LKK KJN, 2012 WL 5838970, at *7 12 (E.D. Cal. Nov. 16, 2012); Wilson v. Gonzalez, No. CV 12-3836 DMG (FFM), 2012 U.S. Dist. 13 LEXIS 183772, at *8–9 (C.D. Cal. Oct. 3, 2012), report and recommendation adopted, 2012 U.S. 14 Dist. LEXIS 183743 (C.D. Cal. Dec. 28, 2012(; Clark v. McEwen, No. 10cv02149 AJB(RBB), 15 2012 WL 1205509, at *7–8 (S.D. Cal. Feb. 28, 2012), report and recommendation adopted, 2012 16 WL 1205300 (S.D. Cal. Apr. 11, 2012). The Court finds the above cases persuasive. Further, in light of Petitioner’s challenge to 17 18 the application of amended California Penal Code section 2933.6 to him and his request to be 19 released on the date he would have been released under the previous version of section 2933.6 20 that was in place prior to January 25, 2010, the basis for Petitioner’s claims is his initial gang 21 validation and resultant zero-credit-earning status rather than the ICC’s subsequent decision to 22 continue Petitioner’s zero-credit-earning status. Accordingly, the Court finds that the initial 23 administrative decision is the “factual predicate” of Petitioner’s claims. Here, the initial 24 administrative decision was made on March 3, 2011, but Petitioner did not receive notice of the 25 decision until April 1, 2011. (ECF No. 13-1 at 29). Thus, the one-year limitation period began 26 running the next day on April 2, 2011, and absent tolling, was set to expire on April 2, 2012.4 27 4 April 1, 2012 fell on a Sunday. Accordingly, the limitation period continued to run until the next business day. See 28 Fed. R. Civ. P. 6(a)(1)(C). 4 1 See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (citing Fed. R. Civ. P. 6(a)). 2 The “time during which a properly filed application for State post-conviction or other 3 collateral review with respect to the pertinent judgment or claim is pending shall not be counted 4 toward” the one-year limitation period. 28 U.S.C. § 2244(d)(2). However, § 2244(d) “does not 5 permit the reinitiation of the limitations period that has ended before the state petition was filed.” 6 Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Here, the limitation period expired on 7 April 2, 2012, and Petitioner’s first state habeas petition was filed on August 22, 2014. 8 Accordingly, Petitioner is not entitled to statutory tolling under § 2244(d)(2). 9 The limitation period also is subject to equitable tolling if the petitioner demonstrates 10 “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 11 circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 12 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner has failed to file 13 a response to the motion to dismiss and has not made any showing that he is entitled to equitable 14 tolling. Therefore, the instant petition was not timely filed, and dismissal is warranted on this 15 ground. 16 B. Exhaustion 17 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 18 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 19 on comity to the state court and gives the state court the initial opportunity to correct the state’s 20 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 21 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 22 providing the highest state court with a full and fair opportunity to consider each claim before 23 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 24 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). To provide the 25 highest state court the necessary opportunity, the petitioner must “fairly present” the claim with 26 “reference to a specific federal constitutional guarantee, as well as a statement of the facts that 27 entitle the petitioner to relief.” Duncan, 513 U.S. at 365; Gray v. Netherland, 518 U.S. 152, 162– 28 63 (1996). See also Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (“Fair presentation 5 1 requires that the petitioner ‘describe in the state proceedings both the operative facts and the 2 federal legal theory on which his claim is based so that the state courts have a “fair opportunity” 3 to apply controlling legal principles to the facts bearing upon his constitutional claim.’”) 4 (citations omitted). 5 In the instant case, Petitioner filed a state habeas petition in the California Supreme 6 Court. (ECF No. 13-1 at 60). The only claim for habeas relief raised in the petition was that 7 application of amended California Penal Code section 2933.6 violated his plea agreement. (Id. at 8 62). Petitioner did not label his claim as a federal claim, and there was no reference to the Ex 9 Post Facto Clause or any citation to federal law or cases involving federal claims. See Baldwin 10 v. Reese, 541 U.S. 27, 32 (2004) (“A litigant wishing to raise a federal issue can easily indicate 11 the federal law basis for his claim in a state-court petition or brief, for example, by citing in 12 conjunction with the claim the federal source of law on which he relies or a case deciding such a 13 claim on federal grounds, or by simply labeling the claim ‘federal.’”). Therefore, Petitioner 14 failed to provide the California Supreme Court with a full and fair opportunity to consider his ex 15 post facto claim, and dismissal is warranted on this ground. 16 III. 17 RECOMMENDATION 18 Accordingly, the Court HEREBY RECOMMENDS that: 19 1. Respondent’s motion to dismiss (ECF No. 13) be GRANTED; and 20 2. The petition for writ of habeas corpus be DISMISSED. 21 This Findings and Recommendation is submitted to the assigned United States District 22 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 23 Rules of Practice for the United States District Court, Eastern District of California. Within 24 THIRTY (30) days after service of the Findings and Recommendation, any party may file 25 written objections with the court and serve a copy on all parties. Such a document should be 26 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 27 objections shall be served and filed within fourteen (14) days after service of the objections. The 28 assigned United States District Court Judge will then review the Magistrate Judge’s ruling 6 1 pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 2 the specified time may waive the right to appeal the District Court’s order. Wilkerson v. 3 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 4 Cir. 1991)). 5 6 7 IT IS SO ORDERED. Dated: August 29, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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