(HC) Russ v. Yates, No. 1:2008cv01735 - Document 17 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 10 Respondent's Motion to Dismiss be GRANTED and the 1 Petition for Writ of Habeas Corpus be DISMISSED With Prejudice, signed by Magistrate Judge Dennis L. Beck on 2/11/2010. Referred to Judge Ishii. Objections to F&R due by 3/17/2010. (Jessen, A)
Download PDF
<![CDATA[
(HC) Russ v. Yates Doc. 17 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 13 WILBERT DALE RUSS, ) ) Petitioner, ) ) v. ) ) ) JAMES A. YATES, Warden, ) ) Respondent. ) ____________________________________) 1:08-cv-01735 AWI YNP [DLB] (HC) FINDINGS AND RECOMMENDATION REGARDING RESPONDENT’S MOTION TO DISMISS [Doc. #10] 14 Petitioner is a State prisoner proceeding pro se with a petition for writ of habeas corpus 15 pursuant to 28 U.S.C. § 2254. 16 BACKGROUND 17 Petitioner was placed in administrative segregation on June 6, 2006, when he was found in 18 possession of an inmate manufactured weapon. (Pet. Ex. 1, Administrative Segregation Unit 19 Placement Notice, June 6, 2006.) On July 16, 2006, a disciplinary hearing was held and Petitioner 20 was found guilty of “possession of inmate manufactured weapon.” (Pet. Ex. 2, Rules Violation 21 Report - Part C, July 16, 2006.) On January 8, 2007, Petitioner’s second level appeal was denied. 22 (Pet. Ex. 6, Second Level Appeal Response, January 8, 2007.) On April 4, 2007, Petitioner’s 23 Director’s level appeal was denied. (Pet. Ex. 6, Director’s Level Appeal Decision, April 4, 2007.) 24 State habeas petitions 25 On June 9, 2008, Petitioner filed a petition for writ of habeas corpus with the Solano County 26 Superior Court alleging insufficent evidence to support his conviction and violation of due process. 27 (Pet., 7-8, 10.) The petition was denied in a reasoned decision on August 13, 2008. (Id. at 7-8.) 28 U .S. D istrict Court E . D . California 1 Dockets.Justia.com 1 Next, Petitioner filed a petition for writ of habeas corpus with the California Court of 2 Appeal, First Appellate District, which summarily denied the petition on September 3, 2008. (Id. at 3 4.) 4 On September 25, 2008, Petitioner filed a petition for writ of habeas corpus with the 5 California Supreme Court. (Id. at 11-16.) The court summarily denied the petition on October 22, 6 2008. (Id. at 3.) 7 Federal habeas petition 8 9 On November 8, 2008, Petitioner filed the instant petition in the U.S. District Court. (Doc. #1.) On March 16, 2009, Respondent filed a motion to dismiss claiming that the petition was 10 untimely and that Petitioner failed to state a claim upon which relief could be granted. (Doc. #10.) 11 Petitioner did not file any opposition to the motion. It is Respondent’s motion to dismiss that will 12 be considered herein. 13 14 15 DISCUSSION I. Jurisdiction Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant 16 to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of 17 the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 18 375 n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. 19 Constitution. In addition, prisoner filed this petition while housed at Kern Valley State Prison, in 20 Delano, California, which is within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28 U.S.C. § 21 2241(d). Accordingly, the Court has jurisdiction over the action. 22 On April 24, 1996, Congress enacted the AEDPA, which applies to all petitions for writ of 23 habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 24 114 F.3d 1484, 1499 (9th Cir. 1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), 25 cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 26 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition 27 was filed after the enactment of the AEDPA; thus, it is governed by its provisions. 28 II. Procedural Grounds for Motion to Dismiss U .S. D istrict Court E . D . California 2 1 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 2 if it “plainly appears from the petition . . . that the petitioner is not entitled to relief." See Hendricks 3 v. Vasquez, 908 F.2d 490 (9th Cir. 1990). 4 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if 5 the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the 6 state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using 7 Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 8 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to 9 dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 10 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and 11 the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12 12. Because the arguments in the motion to dismiss are procedural in nature and Respondent has not 13 yet filed a formal answer, the Court will review Respondent’s motion to dismiss pursuant to its 14 authority under Rule 4. 15 III. Limitation Period for Filing a Petition for Writ of Habeas Corpus 16 The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after 17 the date of its enactment. Lindh v. Murphy, 521 U.S. at 117; Jeffries v. Wood, 114 F.3d at 1499. As 18 noted above, the instant petition is subject to the requirements laid out in the AEDPA. The AEDPA 19 imposes a one-year period of limitation on petitioners seeking to file a federal petition for writ of 20 habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, subdivision (d) reads: 21 22 23 (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; 24 25 (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; 26 27 (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 28 U .S. D istrict Court E . D . California 3 1 (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 3 (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. 4 28 U.S.C. § 2244(d). 5 The Ninth Circuit has held that “‘§ 2244's one-year limitation period applies to all habeas 6 petitions filed by persons in custody pursuant to the judgment of a State Court’ even if the petition 7 challenges an administrative decision rather than a state court judgment.” Eric v. Shelby, 391 F.3d 8 1061, 1062 (9th Cir. 2004). 9 In most cases, the limitation period begins running on the day the petitioner’s direct review 10 became final. Petitioner’s judgment became final when he exhausted his direct review process, i.e., 11 the day that the Director’s level denied his appeal. The statute of limitations began to run the next 12 day, on April 5, 2007. Accordingly, absent any applicable tolling, Petitioner had until April 4, 2008 13 to file a petition for writ of habeas corpus in the federal court. 14 Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2) 15 Title 28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed application for 16 state post-conviction or other collateral review with respect to the pertinent judgment or claim is 17 pending shall not be counted toward” the one year limitation period. 28 U.S.C. § 2244(d)(2). In 18 Carey v. Saffold, the Supreme Court held the statute of limitations is tolled where a petitioner is 19 properly pursuing post-conviction relief, and the period is tolled during the intervals between one 20 state court's disposition of a habeas petition and the filing of a habeas petition at the next level of the 21 state court system. Carey v. Saffold, 122 S.Ct. 2134, 2135-36 (2002); see also Nino v. Galaza, 183 22 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 120 S.Ct. 1846 (2000); Welch v. Newland, 267 F.3d 23 1013, 1016 (9th Cir. 2001) (“tolled period includes intervals between the disposition of a state court 24 petition and the filing of a subsequent petition at the next state appellate level”); Patterson v. Stewart, 25 251 F.3d 1243, 1247 (9th Cir. 2001) (stating that the "AEDPA's one-year grace period is tolled 26 during the pendency of properly filed state petitions challenging the judgment or claim at issue."); cf. 27 Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001) (Court found no tolling between consecutive filings 28 U .S. D istrict Court E . D . California 4 1 at the same level); Lewis v. Mitchell, 173 F.Supp.2d 1057, 1061 (C.D. Cal.2001) (holding that the 2 interval between a motion for sentence modification in the state superior court and a habeas petition 3 in the superior court was not tolled pursuant to 28 U.S.C. § 2244(d)(2)). 4 The limitation period is tolled while a “properly filed application for state post-conviction or 5 other collateral review with respect to the pertinent judgment or claim is pending.” Pace v. 6 DiGuglielmo, 544 U.S. 408, 410 (2005). “A state post conviction petition rejected by the state court 7 as untimely” cannot be considered “properly filed.” Id. 8 9 Petitioner did not filed his first State habeas petition until June 9, 2008, two months after the statute of limitations had already run out. Because Petitioner did not file a State petition until after 10 the limitation period was over, none of Petitioner’s State petitions can serve to toll the limitation 11 period. The one-year limitation period ended long before Petitioner filed a petition for writ of habeas 12 corpus in federal court, thus, the petition must be dismissed as untimely. 13 Equitable Tolling 14 The federal court is not bound by California law regarding statue of limitations, however, the 15 federal habeas courts do recognize that the limitation period can be subject to equitable tolling if 16 “extraordinary circumstances beyond a prisoner’s control” have made it impossible for the petition to 17 be filed on time. Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (citing 18 Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996), cert denied, 522 U.S. 814 19 (1997)); Calderon v. U.S. Dist. Ctourt for the Cent. Dist. Of Cal.(Beeler), 128 F.3d 1283, 1288 (9th 20 Cir. 1997) (noting that "[e]quitable tolling will not be available in most cases, as extensions of time 21 will only be granted if 'extraordinary circumstances' beyond a prisoner's control make it impossible to 22 file a petition on time"), overruled on other grounds by Calderon v. U.S. Dist. Court for Cent. Dist. 23 Of California, 163 F.3d 530, 539 (9th Cir. 1998), abrogated by Woodford v. Garceau, 538 U.S. 202 24 (2003). "When external forces, rather than a petitioner's lack of diligence, account for the failure to 25 file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 26 187 F.3d 1104, 1107 (9th Cir. 1999). Petitioner bears the burden of alleging facts that would give 27 rise to tolling. Smith v. Duncan, 297 F.3d 809 (9th Cir.2002); Hinton v. Pac. Enters., 5 F.3d 391, 28 395 (9th Cir.1993). U .S. D istrict Court E . D . California 5 1 Petitioner makes no argument as to why he waited so long before filing his first petition for 2 writ of habeas corpus. Furthermore, after reviewing the petition, this Court finds no extraordinary 3 circumstances present, thus, Petitioner cannot receive equitable tolling. 4 5 Because the petition is clearly untimely, the Court will not consider Respondent’s argument that Petitioner failed to state a claim upon which relief could be granted. 6 7 8 CONCLUSION The instant petition must be dismissed as untimely because it was filed after the AEDPA’s one-year statute of limitations ended. 9 RECOMMENDATION 10 It is hereby RECOMMENDED that: 11 1) Respondent’s motion to dismiss is GRANTED and 12 2) the petition for writ of habeas corpus is DISMISSED with prejudice. 13 These Findings and Recommendations are submitted to the Honorable Anthony W. Ishii, 14 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 15 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of 16 California. Within thirty (30) days after being served with a copy, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Replies to the objections shall 19 be served and filed within ten (10) court days (plus three days if served by mail) after service of the 20 objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 21 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive 22 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 25 IT IS SO ORDERED. Dated: 3b142a February 11, 2010 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 26 27 28 U .S. D istrict Court E . D . California 6
]]>
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.
