(HC) Shives v. Sisto, No. 2:2008cv01548 - Document 17 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 09/03/09 recommending that Respondent's motion to dismiss the petition as untimely 14 be denied. Respondent be directed to file and serve an answer and not a motion in response to petitioner's application within 60 days. Petitioner be directed that his reply, if any, be filed and served within 30 days of service of an answer. MOTION to DISMISS 14 referred to Judge John A. Mendez. Objections due within 21 days. (Plummer, M)
Download PDF
<![CDATA[
(HC) Shives v. Sisto Doc. 17 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 THOMAS SHIVES, 11 Petitioner, 12 13 No. CIV S-08-1548 JAM EFB P vs. D.K. SISTO, Warden, FINDINGS AND RECOMMENDATIONS Respondent. 14 / 15 Petitioner is a state prisoner proceeding without counsel on a writ of habeas corpus 16 17 pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss on the ground that this action is 18 untimely. For the reasons explained, the petition is timely and the motion must be denied. 19 I. Procedural History 20 Petitioner is serving a life term and a concurrent thirteen-year term pursuant to a 1986 21 conviction. Pet. at 1. At his parole suitability hearing on November 14, 2006, the California 22 Board of Parole Hearings (“Board”) found him unsuitable for parole. Id. at “5–7”-“5–11.” He 23 filed on September 5, 2007 a petition for writ of habeas corpus with the Superior Court of 24 Sacramento County to challenge that parole denial. Id. at “5–11”; Resp.’s Mot. to Dism., Ex. 1. 25 The Superior Court denied the petition on October 16, 2007. Id., Ex. 2. Petitioner then filed a 26 habeas petition with the California Court of Appeal for the Third Appellate District on 1 Dockets.Justia.com 1 November 13, 2007. Pet. at “5–12”; Resp.’s Mot. to Dism., Ex. 3. The Court of Appeal denied 2 petitioner’s application on December 6, 2007. Resp.’s Mot. to Dism., Ex. 4. On December 13, 3 2007, petitioner filed a habeas petition with the California Supreme Court. Id., Ex. 5. A printout 4 from appellatecases.courtinfo.ca.gov shows that the California Supreme Court denied the 5 petition on February 13, 2008. Id., Ex. 6. Respondent has not provided this Court with the 6 actual order of denial, but petitioner does not dispute that his petition was denied on that date. 7 Petitioner filed the instant federal petition on July 7, 2008. 8 II. 9 Statute of Limitations A one-year limitation period for seeking federal habeas relief begins to run from the 10 latest of the date the judgment became final on direct review, the date on which a state-created 11 impediment to filing is removed, the date the United States Supreme Court makes a new rule 12 retroactively applicable to cases on collateral review or the date on which the factual predicate of 13 a claim could have been discovered through the exercise of due diligence. 28 U.S.C. 14 § 2244(d)(1). 15 There is no tolling of this one-year period “from the time a final decision is issued on 16 direct state appeal [to] the time the first state collateral challenge is filed.” Nino v. Galaza, 183 17 F.3d 1003, 1006 (9th Cir. 1999). However, once a petitioner properly files a state post- 18 conviction application the period is tolled, and remains tolled for the entire time that application 19 is “pending.” 28 U.S.C. § 2244(d)(2). “[A]n application is properly filed when its delivery and 20 acceptance are in compliance with the applicable laws and rules governing filings.” Artuz v. 21 Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post-conviction application is 22 “pending” during the intervals between a lower court decision and filing a new petition in a 23 higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002). 24 A. 25 Respondent contends that the federal petition challenging the Board’s parole denial 26 Proper Limitations Period Start-Date decision is untimely. To rule on the timeliness issue, the Court must first determine when 2 1 AEDPA’s limitations period began to run. Where a petitioner challenges a decision denying him 2 parole, the limitations period generally begins to run when the petitioner could have discovered 3 the factual predicate of those claims through the exercise of due diligence. Redd v. McGrath, 4 343 F.3d 1077, 1082-85. Respondent argues that limitations period began on the date that the 5 Board panel issued its decision (November 14, 2006) even though that decision did not become 6 final for another 120 days (on March 14, 2007), pending a review process. See Cal. Code Regs. 7 tit. 15, § 2041(h). Petitioner argues that he did not know the factual predicate of his claims 8 regarding the parole denial until the decision became final and no longer subject to modification. 9 The Court agrees with petitioner that the limitations period did not begin to run until the 10 Board’s decision became final on March 14, 2007. Before then, the decision was subject to 11 change, and thus the factual predicate of petitioner’s claims was not capable of discovery. See 12 id. (“Within 110 days of the hearing, the chief counsel, or a designee, may: (I) affirm the 13 proposed decision, (ii) order a new hearing, or (iii) modify the proposed decision without a new 14 hearing.”) This accords with the holding in Redd v. McGrath, in which the Ninth Circuit held 15 that the factual predicate of a parole denial claim became capable of discovery at the conclusion 16 of the prison appeals process (which has since been abolished in California). Redd, 343 F.3d at 17 1084. The court characterized its holding as in harmony with other federal courts of appeal, 18 which had held that the limitations period began to run “on the date the administrative decision 19 became final.” Id. It expressly declined to hold that the limitations period began “when the 20 initial administrative decision is made[.]” Id. at 1084 n.11. 21 B. Statutory Tolling 22 As mentioned above, the limitations period is tolled during the pendency of properly- 23 filed state habeas petitions. 28 U.S.C. § 2244(d)(2). Respondent does not dispute that the 24 limitations period was tolled during the pendency of petitioner’s state court petitions from 25 September 5, 2007 to February 13, 2008. At the time of the filing of petitioner’s first state 26 petition on September 5, 2007, 175 days of petitioner’s one-year federal limitations period had 3 1 run. He therefore had 190 days from February 13, 2008 to file the instant petition. He filed 2 within that period on July 7, 2008, 144 days after the California Supreme Court denied his 3 petition and with 319 days having run on the federal limitations period. The petition is therefore 4 timely and the motion to dismiss must be denied. 5 III. Conclusion 6 The Court finds that petitioner has filed the instant habeas petition within the one-year 7 limitations period provided for by AEDPA. Petitioner filed the petition within 365 days of the 8 date on which the Board’s decision denying him parole became final. 9 Accordingly, IT IS HEREBY RECOMMENDED that: 10 1. Respondent’s motion to dismiss the petition as untimely be DENIED; 11 2. Respondent be directed to file and serve an answer and not a motion in response to 12 petitioner’s application within 60 days, see Rule 4, Fed. R. Governing § 2254 Cases, and that the 13 answer be accompanied by any and all transcripts or other documents relevant to the 14 determination of the issues presented in the application. See Rules 4, 5, Fed. R. Governing § 15 2254 Cases; and 16 17 3. Petitioner be directed that his reply, if any, be filed and served within 30 days of service of an answer. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one 20 days after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 23 //// 24 //// 25 //// 26 //// 4 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: September 3, 2009. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
