(HC) Guthrie v. Sisto, No. 2:2009cv02130 - Document 12 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 06/03/10 recommending that respondent's motion to dismiss 10 be granted. MOTION to DISMISS 10 referred to Judge Frank C. Damrell. Objections due within 20 days. (Plummer, M)
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(HC) Guthrie v. Sisto Doc. 12 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN DOUGLAS GUTHRIE, 12 13 14 15 Petitioner, vs. FINDINGS AND RECOMMENDATIONS D.K. SISTO, Respondent. 16 17 No. CIV S-09-2130-FCD-CMK-P / Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254, challenging a decision by the California Board of 19 Prison Hearings (Board) that he is unsuitable for parole. Pending before the court is 20 Respondents’ motion to dismiss the petition on the grounds that the petition is untimely and 21 unexhausted (Doc. 10). Petitioner filed an opposition to the motion (Doc. 11). 22 I. 23 Petitioner was convicted in the Siskiyou County Superior Court of second degree BACKGROUND 24 murder in 1984, and was sentenced to 15 years to life, plus two for the use of a firearm. (Pet., 25 Doc. 1, at 1). A subsequent parole consideration hearing for petitioner was held on November 26 17, 2006. At that hearing, the Board of Parole Hearings determined petitioner was not suitable 1 Dockets.Justia.com 1 for parole, and denied parole for three years. (See Pet., Ex. A). The Board’s decision was 2 rendered at the time of the hearing on November 17, 2006, but states it was not final until March 3 17, 2007. (Id.) Petitioner filed a habeas petition with the Siskiyou County Superior Court on 4 April 16, 2007, which was denied on April 1, 2008. Apparently due to the delay in obtaining a 5 ruling on his petition filed with the Siskiyou County Court, Petitioner filed his petition with the 6 California Court of Appeal on November 14, 2007, which was summarily denied on April 3, 7 2008. His final state petition was filed with the California Supreme Court on April 24, 2008, 8 which was denied on September 17, 2008, with a citation to People v. Duvall, 9 Cal. 4th 464, 9 474 (1995). Petitioner filed the instant action on August 3, 2009. 10 II. MOTION TO DISMISS 11 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to 12 dismiss a petition if it “plainly appears from the petition and any attached exhibits that the 13 petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing 14 Section 2254 Cases. The Ninth Circuit has allowed respondents to file a motion to dismiss in 15 lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being 16 in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th 17 Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state 18 remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural 19 grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F. Supp. 20 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss 21 after the court orders a response, and the Court should use Rule 4 standards to review the motion. 22 See Hillery, 533 F. Supp. at 1194 & n.12. The petitioner bears the burden of showing that he has 23 exhausted state remedies. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 24 A. 25 Respondent brings this motion to dismiss Petitioner’s federal habeas corpus 26 STATUTE OF LIMITATIONS petition as filed beyond the one-year statute of limitations, pursuant 28 U.S.C. § 2244(d). 2 1 Respondent argues the statute of limitations began running following the Board’s November 18, 2 2006, decision, which expired well before the petition was filed in this case on August 3, 2009. 3 4 Petitioner argues the Board’s decision was not final until March 17, 2007, and the statute of limitations did not start to run until then. 5 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death 6 Penalty Act of 1996 (hereinafter “AEDPA”). AEDPA imposes various requirements on all 7 petitions for writ of habeas corpus filed after the date of its enactment. See Lindh v. Murphy, 8 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). In this 9 case, the petition was filed on May 29, 2008, and therefore, it is subject to the provisions of 10 AEDPA. AEDPA imposes a one-year statute of limitation on petitioners seeking to file a federal 11 petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2254(d) reads: 12 (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 was 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. 13 14 15 16 17 18 19 20 21 22 (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 24 25 28 U.S.C. § 2244(d). 26 /// 3 1 The statute of limitations for habeas petitions challenging parole suitability 2 hearings is based on § 2244(d)(1)(D), that is, the date on which the factual predicate of the claim 3 or claims could have been discovered through the exercise of due diligence. See Shelby v. 4 Bartlett, 391 F.3d 1061, 1062 (9th Cir. 2004), Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir. 5 2003). In habeas proceedings challenging an administrative decision, courts within the Ninth 6 Circuit, relying on the opinions in Shelby and Redd, have determined that discovery of the 7 factual predicate cannot occur until the administrative decision is final. See Shelby, 391 F.3d at 8 1065-66; Redd, 343 F.3d at 1084-85; Tafoya v. Subia, 2:07cv2389, 2010 WL 668920 *2-3 (E.D. 9 Cal. Feb. 23, 2010); Webb v. Curry, 2010 WL 235073 (N.D. Cal. Jan. 21, 2010); Van Houten v. 10 Davidson, 2009 WL 811596 (C.D. Cal. March 26, 2009); Wilson v. Sisto, 2008 WL 4218487 11 (E.D. Cal. Sept. 5, 2008) (citing Nelson v. Clark, 2008 WL 2509509 (E.D. Cal. June 23, 2009)); 12 see also Cal. Code Regs., tit. 15, § 2041(h), Cal. Penal Code § 3041(b) (Board decisions are final 13 120 days after the hearing). 14 Here, Petitioner is challenging his 2006 denial of parole. Respondent argues that 15 the Board’s decision denying Petitioner parole was rendered on November 17, 2006, and the 16 factual predicate of Petitioner’s claims were known to him as of that day. Respondent alleges 17 Petitioner filed his first state petition challenging that decision on April 5, 2007. Respondent 18 then concedes the statute of limitations was tolled while Petitioner challenged the parole decision 19 in state court, until September 17, 2008, the date the California Supreme Court denied his habeas 20 petition. Providing Petitioner the benefit of the mailbox rule, Respondent alleges Petitioner’s 21 federal habeas petition was filed in this court on July 20, 2009.1 Using those dates, Respondent 22 1 23 24 25 26 In Houston v. Lack, 487 U.S. 266 (1988), the Supreme Court held that a pro se prisoner’s notice of appeal is deemed “filed” at the moment he delivers it to prison officials for mailing to the court. The so-called “prison mailbox rule” has been extended to apply to other legal documents submitted to the court by prisoners. See e.g. Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (applying rule to prisoner’s habeas corpus petition); see also Huizar v. Carey, 273 F.3d 1220, 1223 (9th Cir. 2001) (discussing rule in context of “prisoner who delivers a document to prison authorities”); Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002) (stating rule in terms of any “legal document” submitted by a pro se prisoner). 4 1 argues Petitioner used 138 days of the limitations period from the date of the parole suitability 2 hearing until he filed his first state court challenge. Following the California Supreme Court’s 3 denial of his habeas petition, Petitioner then had 227 days, or until May 3, 2009, to file a timely 4 federal habeas petition. However, as Petitioner’s federal habeas petition was not filed until July 5 2009, it is untimely and should be dismissed. 6 Petitioner argues the Board’s decision was not final until March 17, 2007, and the 7 statute of limitations did not start to run until that date. His state challenge was filed on April 16, 8 2007, and his final state challenge was denied on September 17, 2008. Therefore, when he filed 9 his state habeas petition he had used less than 60 days of the limitations period. 10 As stated above, federal habeas courts within the Ninth Circuit have determined 11 that discovery of the factual predicate cannot occur until the administrative decision is final. 12 Therefore, the statute of limitations period does not start to run until a parole denial is “final.” In 13 this case, the statue of limitations began on March 18, 2007, the day after the Board’s decision 14 became final. As Respondent concedes, Petitioner filed his state habeas petition on April 5, 15 2007, and the limitations period was tolled until the California Supreme Court’s denial on 16 September 17, 2008. Petitioner then filed his federal habeas petition on July 30, 2009, prior to 17 the expiration of the statute of limitations. Petitioner’s federal habeas petition was therefore 18 timely, and the motion to dismiss should be denied on this ground. 19 B. 20 Respondent also argues the claims raised in Petitioner’s federal habeas petition 21 EXHAUSTION are unexhausted as his state habeas petition was procedurally deficient. 22 Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required 23 before the federal court can grant a claim presented in a habeas corpus case. See Rose v. Lundy, 24 455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. 25 Pliler, 336 F.3d 839 (9th Cir. 2003). “A petitioner may satisfy the exhaustion requirement in 26 two ways: (1) by providing the highest state court with an opportunity to rule on the merits of the 5 1 claim . . .; or (2) by showing that at the time the petitioner filed the habeas petition in federal 2 court no state remedies are available to the petitioner and the petitioner has not deliberately 3 by-passed the state remedies.” Batchelor v. Cupp , 693 F.2d 859, 862 (9th Cir. 1982) (citations 4 omitted). The exhaustion doctrine is based on a policy of federal and state comity, designed to 5 give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard 6 v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518. 7 Regardless of whether the claim was raised on direct appeal or in a post- 8 conviction proceeding, the exhaustion doctrine requires that each claim be fairly presented to the 9 state’s highest court. See Castille v. Peoples, 489 U.S. 346 (1989). Although the exhaustion 10 doctrine requires only the presentation of each federal claim to the highest state court, the claims 11 must be presented in a posture that is acceptable under state procedural rules. See Sweet v. 12 Cupp, 640 F.2d 233 (9th Cir. 1981). Thus, an appeal or petition for post-conviction relief that is 13 denied by the state courts on procedural grounds, where other state remedies are still available, 14 does not exhaust the petitioner’s state remedies. See Pitchess v. Davis, 421 U.S. 482, 488 15 (1979); Sweet, 640 F.2d at 237-89.2 16 In addition to presenting the claim to the state court in a procedurally acceptable 17 manner, exhaustion requires that the petitioner make the federal basis of the claim explicit to the 18 state court by including reference to a specific federal constitutional guarantee. See Gray v. 19 Netherland, 518 U.S. 152, 162-63 (1996); see also Shumway v. Payne, 223 F.3d 982, 998 (9th 20 Cir. 2000). It is not sufficient for the petitioner to argue that the federal nature of the claim is 21 self-evident. See Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by 247 F.3d 22 904 (9th Cir. 2001). 23 In the instant case, the California Supreme Court summarily denied petitioner’s 24 2 25 26 This situation of procedural deficiency is distinguishable from a case presented to the state court using proper procedures but where relief on the merits is precluded for some procedural reason, such as untimeliness or failure to raise the claim on direct appeal. The former represents an exhaustion problem; the latter represents a procedural default problem. 6 1 habeas corpus petition with a citation to People v. Duvall, 9 Cal. 4th 464, 474 (1995). Duvall 2 outlines the various procedural requirements for a state habeas petition. See 9 Cal.4th at 474. 3 Under California law, a citation to Duvall indicates that a petitioner has failed to state his claim 4 with sufficient particularity for the state court to examine the merits of the claim, and/or has 5 failed to “include copies of reasonably available documentary evidence supporting the claim, 6 including pertinent portions of trial transcripts and affidavits or declarations.” Duvall, 9 Cal. 4th 7 at 474. A failure to comply with this requirement is a pleading defect subject to cure by 8 amendment. 9 Here, Respondent has provided the court a copy of the petition Petitioner filed in 10 the California Supreme Court. Petitioner does not argue the petition provided is incomplete. 11 Reviewing the petition, it appears that instead of filing the entire transcript from his parole 12 hearing, Petitioner chose to file only the hearing decision portion of the transcript. The 13 California Supreme Court apparently found this deficient. However, such a finding would not 14 preclude Petitioner from re-filing his petition in the California Supreme Court along with the 15 entire hearing transcript and any additional information or documents that would have permitted 16 that court to make a decision on the merits, thereby exhausting Petitioner’s claims. See Kim v. 17 Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). Petitioner failed to do so. 18 Petitioner attaches to his opposition a copy of a letter he sent to the California 19 Supreme Court in September 2008, following the Court’s denial of his petition. In that letter, he 20 explained to the Court that he believed he provided all the evidence necessary, and that he “failed 21 to realize that the Court would need the complete transcripts to make the reasoned opinion.” 22 (Opp., Doc. 11 at 15). He requested to be allowed to refile his petition. He also provides the 23 Court’s response thereto, wherein the Court stated the September 17, 2008, decision was final 24 and was not reviewable. The Court stated that the petition, “and the contentions made therein,” 25 were considered by the court, “and the denial expresses the court’s decision in this matter.” He 26 argues that this shows the Court did consider the merits of his petition, and his federal petition is 7 1 therefore exhausted. 2 The undersigned does not find this argument persuasive. Petitioner’s request to 3 the California Supreme Court that he be allowed to refile his petition is not the same as filing an 4 amended petition which included all of the necessary documents. The Court’s letter to 5 Petitioner, indicating the Court’s decision was final and “may not be reconsidered or reinstated,” 6 is not the same as the Court informing Petitioner the petition was considered on the merits or that 7 he was unable to file an amended petition to cure the defects identified by the Court’s denial. 8 9 10 Accordingly, the undersigned concludes that Petitioner did not properly exhaust his claim in the California Supreme Court, and thus his petition is unexhausted and must be dismissed. 11 III. CONCLUSION 12 Based on the foregoing, the undersigned recommends that respondent’s motion to 13 dismiss (Doc. 10) be granted. 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court. The document should be captioned “Objections to Magistrate Judge's 18 Findings and Recommendations.” Failure to file objections within the specified time may waive 19 the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 22 23 DATED: June 3, 2010 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 24 25 26 8
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