(HC) Funtanilla v. Sunday, No. 1:2008cv00797 - Document 18 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that Respondent's 10 Motion to Dismiss be GRANTED and the 1 Habeas Corpus Petition be DISMISSED With Prejudice for Petitioner's Failure to Comply with 28 USC 2244(d)'s One Year Limitation, signed by Magistrate Judge Dennis L. Beck on 8/19/2009. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 9/22/2009. (Sondheim, M)
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(HC) Funtanilla v. Sunday Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 GREGORIO C. FUNTANILLA, Jr., ) ) Petitioner, ) ) v. ) ) Y. SUNDAY, Warden ) ) Respondent. ) ____________________________________) 1:08-cv-00797 LJO YNP (DLB) (HC) FINDINGS AND RECOMMENDATION REGARDING RESPONDENT’S MOTION TO DISMISS [Doc. #10] 16 17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 20 BACKGROUND On November 5, 1990, Petitioner was issued a rules violation report (RVR) for failure to 21 report to the doctor at the prescribed time-a division F offense. Petitioner was disciplined with a loss 22 of thirty days behavioral credit. The report advised Petitioner of his right to appeal the decision. 23 (Pet. Ex.B). 24 Administrative Review 25 On July 14, 2005, Petitioner submitted an application for restoration of the credits he lost on 26 November 5, 1990. On November 7, 2005, the counselor to whom the application was submitted 27 found that Petitioner did not meet the criteria for credit restoration because he received another rule 28 violation on December 21, 1990. The counselor came to this decision by applying the current U .S. D istrict C ourt E. D . C alifornia 1 Dockets.Justia.com 1 version of Title 15 of the California Code of Regulations, Sections 3327 and 3328; which states that 2 prisoners may apply for restoration of credits lost due to a division F offense if they remain free of 3 disciplinary action for a three month period commencing the day following the loss of those credits. 4 (Pet. Ex. F). 5 Petitioner appealed the decision to the Director’s Level where he argued that the counselor 6 applied the wrong standard in denying the restoration of his credits because sections 3327 and 3328 7 were amended and became operative on June 5, 1995.1 Cal. Code Regs., tit. 15, §§ 3327, 3328 8 (2009). Petitioner claimed that, since his credit loss happened before June 5, 1995, the earlier 9 version of Title 15 of the California Code of Regulations, Sections 3327 and 3328 should be applied; 10 which allows a prisoner to apply for restoration of credits after the completion of any three month 11 period free from disciplinary action. The Director’s Level decision held that Petitioner could have 12 applied for restoration of his credits years earlier but failed to do so. The decision also noted that 13 prisoners were given an opportunity to apply for restoration of credits before the statute changed; 14 which Petitioner also failed to do. Petitioner’s Director’s Level appeal was denied on June 5, 2006. 15 (Pet. Ex. F). 16 On January 28, 2007 Petitioner filed for restoration of credits relating to seven different rules 17 violation reports that were issued in 1993 and 1994. All seven were denied under the current Title 18 15 standard. On March 9, 2007, Petitioner appealed contending that the correction counselor should 19 have applied the pre-1996 version of the statute instead of the newer version of the statute. On April 20 5, 2007, his appeal was partially granted because the counselor stated that Petitioner may be eligible 21 for credit restoration for a December 7, 1993 violation. On April 27, 2007, Petitioner stated that he 22 was dissatisfied with only a partial grant and on May 25, 2007 Petitioner’s second level reviewer 23 granted his appeal holding that all credits lost prior to June 5, 1995 are restorable, that Petitioner has 24 been disciplinary free since July 6, 2004, and that “this policy does not reflect that an expiration date 25 exists in regard to when an inmate may file an application for restoration of credit on a particular 26 [rule violation report].” (Pet. Ex. H, I). 27 1 28 Petitioner and Respondent differentiate between the two versions of the state by referring to the pre-1996 rule or the post 1996 rule. U .S. D istrict C ourt E. D . C alifornia 2 1 State Court 2 On February 21, 2007, Petitioner filed a petition for writ of habeas corpus with the Kings 3 County Superior Court complaining that he had been denied his right to have credits restored that 4 had been lost on November 5, 1990. The petition was denied on March 15, 2007, because Petitioner 5 failed to exhaust his administrative remedies. The court found that Petitioner had exhausted 6 available inmate appeals regarding the denial of his July 14, 2005 application for restoration credits. 7 However, instead of filing a petition for writ of habeas corpus at that time, Petitioner requested a 8 computation hearing which took place on January 31, 2007. The computation hearing decision 9 specifically stated that “if you are dissatisfied with your Computation Review Hearing decision you 10 may request a Third-Level Review.” The court based its finding on the fact that Petitioner never 11 requested that third level of review. (Pet. Appendix). 12 On March 31, 2007, Petitioner filed a petition for writ of habeas corpus with the California 13 Court of Appeal, Fifth Appellate District. After additional briefing, the petition was denied without 14 comment on August 9, 2007. (MTD Ex. 6, 10). 15 On November 20, 2007, Petitioner filed a petition with the Supreme Court of California. The 16 Court summarily denied the petition on May 14, 2008. (MTD Ex. 11, 12). 17 Federal Court 18 On June 5, 2008, Petitioner filed the instant petition with the District Court. (Doc. #1). 19 On October 6, 2008, Respondent filed a motion to dismiss claiming the petition was filed 20 outside the statute of limitations and procedural default. (Doc. #10). Petitioner filed an opposition 21 to the motion on December 15, 2008. (Doc. #16). It is Respondent’s motion to dismiss that will be 22 considered herein. 23 24 DISCUSSION I. Jurisdiction 25 Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant 26 to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of 27 the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 28 375 n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. U .S. D istrict C ourt E. D . C alifornia 3 1 Constitution. In addition, the conviction challenged arises out of the Kings County Superior Court, 2 which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d). 3 Accordingly, the Court has jurisdiction over the action. 4 On April 24, 1996, Congress enacted the AEDPA, which applies to all petitions for writ of 5 habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 6 114 F.3d 1484, 1499 (9th Cir. 1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), 7 cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 8 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition 9 was filed after the enactment of the AEDPA; thus, it is governed by its provisions. 10 II. Procedural Grounds for Motion to Dismiss 11 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 12 petition if it “plainly appears from the petition . . . that the petitioner is not entitled to relief." See 13 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). 14 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if 15 the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the 16 state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using 17 Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 18 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to 19 dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 20 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and 21 the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 22 12. 23 In this case, Respondent's motion to dismiss is based on a violation of 28 U.S.C. 2244(d)(1)'s 24 one-year limitation period. Because Respondent's motion to dismiss is similar in procedural 25 standing to a motion to dismiss for failure to exhaust state remedies or for state procedural default 26 and Respondent has not yet filed a formal answer, the Court will review Respondent’s motion to 27 dismiss pursuant to its authority under Rule 4. 28 U .S. D istrict C ourt E. D . C alifornia 4 1 2 III. Limitation Period for Filing a Petition for Writ of Habeas Corpus The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed 3 after the date of its enactment. Lindh v. Murphy, 521 U.S. at 117; Jeffries v. Wood, 114 F.3d at 4 1499. As noted above, the instant petition is subject to the requirements laid out in the AEDPA. The 5 AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal petition for 6 writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, subdivision (d) reads: 7 (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 – 8 9 (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; 10 11 (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; 12 13 (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 14 15 16 17 18 19 (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. 28 U.S.C. § 2244(d). The Ninth Circuit has held that “‘§ 2244's one-year limitation period applies to all habeas 20 petitions filed by persons in custody pursuant to the judgment of a State Court’ even if the petition 21 challenges an administrative decision rather than a state court judgment.” Eric v. Shelby, 391 F.3d 22 1061, 1062 (9th Cir. 2004). 23 In most cases, the limitation period begins running on the date that the petitioner’s direct 24 review became final. In this case, it is not clear cut when the decision became final. Because Title 25 15 at the time of the RVR did not give any time limit within which an application for restoration of 26 credit must be filed, there is no concrete date as to when exactly Petitioner’s statute of limitation 27 should begin to run. Respondent argues that at the very latest the one year limitation period should 28 begin to run the day after the statute changed. Because Petitioner and Respondent refer generally to U .S. D istrict C ourt E. D . C alifornia 5 1 the change in the law as pre-1996 and post 1996, Respondent suggests that the limitation period 2 should commence on January 1, 2007 for the purposes of this analysis. Respondent cites the fact 3 that Petitioner could have filed for restoration of credits before 1996 but inexplicably did not. 4 Respondent also notes that when it became clear that the rules for credit restoration were going to 5 change, the inmates were all advised that if they wanted any of their credits to be restored, they 6 should do it before the new statute went into effect. Again, Petitioner did not file at that time for 7 unexplained reasons. Respondent argues that, because Petitioner had so many chances to file for 8 restoration and because he was put on notice that the rules were going to change, the absolute latest 9 date that Petitioner should have been able to complain that the new law should not apply to credits 10 11 lost before June 5, 1995 is the day the law actually changed. This reasoning is not persuasive to the Court. The decision that Petitioner is challenging is 12 not the RVR and loss of credits, but the decision not to reinstate the credits. Petitioner filed to have 13 the credits that were forfeited on November 5, 1990 reinstated on July 15, 2005. After going through 14 the administrative appeal process, the Director’s Level denied Petitioner’s application on June 5, 15 2006. Because the Director’s level is the highest level of appeal that Petitioner could seek it is the 16 date of that denial on which the administrative decision not to restore Petitioner’s credits became 17 final. The one-year limitation began to run the next day, June 6, 2006, giving Petitioner until June 5, 18 2007 by which to file a petition with the Federal Court. Petitioner did not file the instant petition 19 until 2008; therefore, absent any applicable tolling, Petitioner’s federal habeas petition is barred by 20 the statute of limitations. 21 IV. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2) 22 Title 28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed application 23 for state post-conviction or other collateral review with respect to the pertinent judgment or claim is 24 pending shall not be counted toward” the one year limitation period. 28 U.S.C. § 2244(d)(2). In 25 Carey v. Saffold, the Supreme Court held the statute of limitations is tolled where a petitioner is 26 properly pursuing post-conviction relief, and the period is tolled during the intervals between one 27 state court's disposition of a habeas petition and the filing of a habeas petition at the next level of the 28 state court system. Carey v. Saffold, 122 S.Ct. 2134, 2135-36 (2002); see also Nino v. Galaza, 183 U .S. D istrict C ourt E. D . C alifornia 6 1 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 120 S.Ct. 1846 (2000); Welch v. Newland, 267 F.3d 2 1013, 1016 (9th Cir. 2001) (“tolled period includes intervals between the disposition of a state court 3 petition and the filing of a subsequent petition at the next state appellate level”); Patterson v. 4 Stewart, 251 F.3d at 1247 (stating that the "AEDPA's one-year grace period is tolled during the 5 pendency of properly filed state petitions challenging the judgment or claim at issue."); cf. Dils v. 6 Small, 260 F.3d 984, 986 (9th Cir. 2001) (Court found no tolling between consecutive filings at the 7 same level); Lewis v. Mitchell, 173 F.Supp.2d 1057, 1061 (C.D. Cal.2001) (holding that the interval 8 between a motion for sentence modification in the state superior court and a habeas petition in the 9 superior court was not tolled pursuant to 28 U.S.C. § 2244(d)(2)). 10 The limitation period is tolled while a “properly filed application for state post-conviction or 11 other collateral review with respect to the pertinent judgment or claim is pending.” Pace v. 12 DiGuglielmo, 544 U.S. 408, 410 (2005). “A state post conviction petition rejected by the state court 13 as untimely” cannot be considered “properly filed.” Id. Petitioner filed his Superior Court petition 14 for writ of habeas corpus on February 21, 2007; which is 260 days after the one year limitation 15 period began to run. The Superior Court denied the petition for failure to exhaust administrative 16 remedies; citing In re Dexter, 25 Cal.3d 921, 925 (1979). Failure to exhaust, however, does not 17 mean the petition was improperly filed. Procedural deficiencies do not render a petitioner improperly 18 filed so long as its “delivery and acceptance are in compliance with the applicable laws and rules 19 governing filings.” Atruz v. Bennett, 531 U.S. 4, 8 (2000). The Superior Court makes no claims 20 that there were any problems with the delivery or acceptance of the application; therefore the petition 21 was properly filed. Because the petition was properly filed in the Superior Court within the 22 limitation period, the statute of limitations was tolled as of the date of filing. 23 The Superior Court denied the petition on March 15, 2007 and Petitioner filed with the state 24 appellate court on March 31, 2007. A span of 16 days is not an unreasonable amount of time to 25 move from one level of review to the next; therefore, the limitation period continued to be tolled 26 during the time between courts and the time that the petition spent in the state appellate court. 27 28 In California, there is no question of timeliness with regard to the filing of habeas petitions, rather, the question is whether the petitioner exercised due diligence and a petitioner is merely U .S. D istrict C ourt E. D . C alifornia 7 1 required to file his petition within a reasonable time. Saffold, 536 U.S. at 235. In the absence of 2 “clear direction or explanation” from the state court indicating whether the state petition was timely, 3 the federal court “must itself examine the delay . . . and determine what the state courts would have 4 held in respect to timeliness.” Evans v. Chavis, 546 U.S. 189, 197 (2006). In Chavis, the Supreme 5 Court found a period of six months filing delay to be unreasonable under California law. Id. at 201. 6 The Supreme Court stated, “Six months is far longer than the ‘short period[s] of time,’ 30 to 60 days, 7 that most States provide for filing an appeal to the state supreme court.” Id., quoting Saffold, 536 8 U.S. at 219. In addition, the Supreme Court provided the following guidance for determining 9 timeliness: 10 11 12 13 14 [T]he Circuit must keep in mind that, in Saffold, we held that timely filings in California (as elsewhere) fell within the federal tolling provision on the assumption that California law in this respect did not differ significantly from the laws of other States, i.e., that California’s ‘reasonable time’ standard would not lead to filing delays substantially longer than those in States with determinate timeliness rules. Chavis, 546 U.S. at 199-200, citing Saffold, 536 U.S. at 222-223. The California Court of Appeal denied the petition on August 9, 2007 and Petitioner waited 15 almost four months to petition for review with the California Supreme Court on November 20, 2007. 16 The 103 day delay is far greater than the short period of time of 30 to 60 days provided by most 17 states for filing an appeal. A delay of nearly four months, when only one or two months is normally 18 allotted, seems excessive. 19 Because Petitioner waited an unreasonable amount of time between his appellate denial and 20 filing with the state supreme court, Petitioner’s tolling ended on August 9, 2007; the day the Court of 21 Appeal denied his petition. After the appropriate tolling periods are incorporated, the date by which 22 Petitioner must have filed his petition with the Federal Court becomes November 22, 2007. 23 Petitioner did not sign his petition to the United States District Court until June 5, 2008; which is six 24 months past the end of the one year limitation period; therefore, his petition should be dismissed as 25 untimely. Because the petition should be dismissed under the statute of limitations, there is no need 26 to analyze Respondent’s procedural default argument. 27 28 RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss be U .S. D istrict C ourt E. D . C alifornia 8 1 GRANTED and the habeas corpus petition be DISMISSED with prejudice for Petitioner’s failure to 2 comply with 28 U.S.C. § 2244(d)’s one year limitation period. 3 This Findings and Recommendation is submitted to the Honorable Lawrence J. O’Neill, 4 United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and 5 Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of 6 California. Within thirty (30) days after being served with a copy of this Findings and 7 Recommendation, any party may file written objections with the Court and serve a copy on all 8 parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 9 Recommendation.” Replies to the Objections shall be served and filed within ten (10) court days 10 (plus three days if served by mail) after service of the Objections. The Finding and 11 Recommendation will then be submitted to the District Court for review of the Magistrate Judge’s 12 ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections 13 within the specified time may waive the right to appeal the Order of the District Court. Martinez v. 14 Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 IT IS SO ORDERED. 17 Dated: 3b142a August 19, 2009 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia 9
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