(HC) Corral v. Gonzalez et al, No. 1:2010cv00699 - Document 28 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Sandra M. Snyder on 12/1/10: Recommending that Respondent's Motion to Dismiss be GRANTED and the Petition for Writ of Habeas Corpus be DISMISSED WITH PREJUDICE. The Court further RECOMM ENDS that the Clerk of Court be DIRECTED to enter judgment for Respondent; 1 Petition for Writ of Habeas Corpus filed by Tommy Corral, 21 MOTION to DISMISS filed by S. Hubbard, F. Gonzales, California Department of Corrections and Rehabilitation referred to Judge O'Neill; Objections to F&R due by 1/6/2011. (Hellings, J)
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(HC) Corral v. Gonzalez et al Doc. 28 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 TOMMY CORRAL, ) ) ) ) ) ) ) ) ) ) 12 Petitioner, 13 v. 14 15 F. GONZALEZ, Warden, et al., 16 Respondents. 1:10-CV-00699 LJO SMS HC FINDINGS AND RECOMMENDATION REGARDING RESPONDENT’S MOTION TO DISMISS [Doc. #21] ) 17 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 BACKGROUND1 21 Petitioner is currently in the custody of the California Department of Corrections at the 22 California Correctional Institution located in Tehachapi, California. He challenges a 2008 decision 23 of the California Department of Corrections and Rehabilitation validating him as an active prison 24 gang affiliate. 25 26 Petitioner filed three post-conviction collateral challenges with respect to the judgment in the state courts, as follows: 27 28 1 This information is derived from the documents lodged by Respondent with his response. U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 1) Kern County Superior Court Filed: July 30, 20092; Denied: September 28, 2009; 2) California Court of Appeal, Fifth Appellate District Filed: November 20, 2009; Denied: December 7, 2009; 3) California Supreme Court Filed: January 25, 2010; Denied: March 10, 2010. 2 3 4 5 6 7 On April 21, 2010, Petitioner filed the instant federal petition for writ of habeas corpus in this 8 Court. On October 6, 2010, Respondent filed a motion to dismiss the petition for violation of the 9 statute of limitations, for failure to exhaust state remedies, and for failure to state cognizable claims 10 for relief. Petitioner filed an opposition on November 1, 2010. Respondent filed a reply on 11 November 19, 2010. 12 13 DISCUSSION I. Procedural Grounds for Motion to Dismiss 14 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 15 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 16 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 17 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if 18 the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the 19 state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 20 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 21 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for 22 state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). 23 Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court 24 should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12. 25 26 In this case, Respondent's motion to dismiss is based on a violation of 28 U.S.C. 2244(d)(1)'s one-year limitations period, for failure to exhaust state remedies, and for failure to state cognizable 27 2 28 Pursuant to the mailbox rule, the Court deems the petitions filed on the dates Petitioner signed them and presumably handed them to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988) . U .S. D istrict C ourt E. D . C alifornia cd 2 1 claims. Accordingly, the Court will review Respondent’s motion to dismiss pursuant to its authority 2 under Rule 4. 3 II. Limitation Period for Filing a Petition for Writ of Habeas Corpus 4 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 5 1996 (hereinafter “AEDPA”). The AEDPA imposes various requirements on all petitions for writ of 6 habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 7 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 8 586 (1997). 9 In this case, the petition was filed on April 21, 2010, and therefore, it is subject to the 10 provisions of the AEDPA. The AEDPA imposes a one-year limitations period on petitioners seeking 11 to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, 12 subdivision (d) reads: 13 (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 – 14 15 (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; 16 (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; 17 18 (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 19 20 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 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 28 U.S.C. § 2244(d). 25 In most cases, the limitations period begins running on the date that the petitioner’s direct 26 review became final. In a case such as this where Petitioner challenges a decision by prison 27 authorities, the limitations period commences on the date on which Petitioner could have discovered 28 the factual predicate of his claims. 28 U.S.C. § 2244(d)(1)(D). Here, the triggering date was U .S. D istrict C ourt E. D . C alifornia cd 3 1 May 14, 2008, the date on which he was validated as a prison gang affiliate. Accordingly, the statute 2 of limitations commenced the following day on May 15, 2008, and expired one year later on May 14, 3 2009. Petitioner did not file his federal petition until April 21, 2010. Absent applicable tolling, the 4 petition is untimely by nearly a year and barred by the statute of limitations. 5 A. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2) 6 Title 28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed application 7 for State post-conviction or other collateral review with respect to the pertinent judgment or claim is 8 pending shall not be counted toward” the one year limitation period. 28 U.S.C. § 2244(d)(2). In 9 Carey v. Saffold, the Supreme Court held the statute of limitations is tolled where a petitioner is 10 properly pursuing post-conviction relief, and the period is tolled during the intervals between one 11 state court's disposition of a habeas petition and the filing of a habeas petition at the next level of the 12 state court system. 536 U.S. 214, 215 (2002); see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 13 1999), cert. denied, 120 S.Ct. 1846 (2000). Nevertheless, state petitions will only toll the one-year 14 statute of limitations under § 2244(d)(2) if the state court explicitly states that the post-conviction 15 petition was timely, or it was filed within a reasonable time under state law. Pace v. DiGuglielmo, 16 544 U.S. 408 (2005); Evans v. Chavis, 546 U.S. 189 (2006). If the state court states the petition was 17 untimely, “that [is] the end of the matter, regardless of whether it also addressed the merits of the 18 claim, or whether its timeliness ruling was “entangled” with the merits.” Carey, 536 U.S. at 226; 19 Pace, 544 U.S. at 414. 20 In this case, the statute of limitations commenced on May 15, 2008 and expired one year later 21 on May 14, 2009. Petitioner did not file any state habeas petitions within that time. His first state 22 petition was not filed until July 30, 2009, which was over two months after the limitations period 23 had already expired. Consequently, Petitioner is not entitled to statutory tolling and his petition 24 remains untimely. 25 In his opposition, however, Petitioner argues he could not have filed his state habeas petitions 26 sooner since he was pursuing his administrative remedies with respect to his claims and he could not 27 file his state petitions until after the administrative process was completed. As Respondent correctly 28 contends, Petitioner’s arguments are not well taken. The administrative appeals did not pertain to his U .S. D istrict C ourt E. D . C alifornia cd 4 1 2008 gang validation. Rather, the appeals that Petitioner filed concerned the prison officials’ 2009 2 decision to retain him in secured housing custody due to his ongoing status as a gang associate. As 3 further pointed out by Respondent, the time for filing an administrative appeal with respect to the 4 2008 decision expired well before Petitioner pursued his administrative appeals concerning the 2009 5 housing decision. Cal. Code Regs., tit. 15, § 3084.6(c). 6 B. Equitable Tolling 7 The limitations period is subject to equitable tolling if the petitioner demonstrates: “(1) that 8 he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 9 way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Irwin v. Department of Veteran 10 Affairs, 498 U.S. 89, 96 (1990); Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530, 541 (9th Cir. 1998), 11 citing Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996), cert denied, 522 U.S. 12 814 (1997). Petitioner bears the burden of alleging facts that would give rise to tolling. Pace, 544 13 U.S. at 418; Smith v. Duncan, 297 F.3d 809 (9th Cir.2002); Hinton v. Pac. Enters., 5 F.3d 391, 395 14 (9th Cir.1993). In this case, the Court finds no reason to grant equitable tolling. Therefore, the 15 petition remains untimely and must be dismissed. 16 III. Exhaustion of State Remedies 17 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 18 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 19 exhaustion doctrine is based on comity to the state court and gives the state court the initial 20 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 21 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 22 1163 (9th Cir. 1988). 23 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 24 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 25 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 26 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full 27 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 28 claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 U .S. D istrict C ourt E. D . C alifornia cd 5 1 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 2 Additionally, the petitioner must have specifically told the state court that he was raising a 3 federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 4 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999); 5 Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States Supreme Court 6 reiterated the rule as follows: 7 In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 8 9 10 11 12 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 13 Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is “self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . . In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is. 14 15 16 17 18 19 20 21 22 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added). 23 In this case, Petitioner presents four grounds for relief. Respondent concedes that the first 24 three grounds were presented to the California Supreme Court and exhausted. However, Respondent 25 argues that the fourth ground alleging an ex post facto violation was not presented to the California 26 Supreme Court. Respondent’s arguments are persuasive. Petitioner did not present the claim in his 27 habeas petition to the California Supreme Court. The claim is therefore unexhausted. The instant 28 petition is a mixed petition containing exhausted and unexhausted claims. Normally, the Court U .S. D istrict C ourt E. D . C alifornia cd 6 1 would dismiss a mixed petition without prejudice to give Petitioner an opportunity to exhaust the 2 unexhausted claim. As previously discussed, however, all of the claims presented in the instant 3 petition are untimely. Therefore, the petition should be dismissed with prejudice. 4 IV. Failure to Present a Cognizable Claim 5 Respondent also alleges that Petitioner fails to state a cognizable claim with respect to his 6 allegation that his placement in the secured housing unit as a result of his gang validation violated 7 his due process rights. 8 In this case, it can be argued that Petitioner has a liberty interest in avoiding placement in the 9 secured housing unit. In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court found no liberty 10 interest protecting against a 30-day assignment to segregated confinement because it did not “present 11 a dramatic departure from the basic conditions of [the inmate's] sentence.” Id. at 485. In Wilkinson 12 v. Austin, 545 U.S. 209 (2005), the Supreme Court held that state inmates have a liberty interest in 13 avoiding assignment to Ohio’s supermax prison because the conditions experienced by inmates in 14 Ohio’s supermax prison were clearly an atypical and significant hardship. Id. at 223. In this case, 15 Petitioner is being confined in a secured housing area for an extended period of time. Therefore, 16 Petitioner arguably is suffering an atypical and significant hardship not experienced by the general 17 population which would give rise to a liberty interest. 18 Once a liberty interest has been found, the question is then how much process is due. Id. at 19 224. In Wilkinson, the Supreme Court found a liberty interest and applied the three-part Matthews3 20 test to determine whether the inmate had received his due process protections. The Court found that 21 in the context of a prisoner’s housing placement, it was sufficient that the state had provided the 22 inmate with notice of the adverse decision, reasons for the decision, and an opportunity to be heard. 23 Wilkinson, 545 U.S. at 225-229. In this case, even assuming a liberty interest exists in avoiding 24 placement in the secured housing unit for an extended period of time, it is undisputed that Petitioner 25 received the same protections discussed in Wilkinson. Therefore, Respondent is correct that 26 Petitioner fails to present a federal claim. 27 28 3 Matthews v. Eldridge, 424 U.S. 319, 335 (1976). U .S. D istrict C ourt E. D . C alifornia cd 7 1 RECOMMENDATION 2 Accordingly, the Court RECOMMENDS that Respondent’s motion to dismiss be 3 GRANTED and the petition for writ of habeas corpus be DISMISSED WITH PREJUDICE. The 4 Court further RECOMMENDS that the Clerk of Court be DIRECTED to enter judgment for 5 Respondent. 6 This Findings and Recommendation is submitted to the Honorable Lawrence J. O’Neill, 7 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 8 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. 9 Within thirty (30) days after service of the Findings and Recommendation, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall 12 be served and filed within fourteen (14) days after service of the objections. The Court will then 13 review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised 14 that failure to file objections within the specified time may waive the right to appeal the District 15 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 17 IT IS SO ORDERED. 18 Dated: icido3 December 1, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 8