(HC) Foster v. Davey, No. 1:2016cv00612 - Document 21 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS to dismiss Petition as untimely re 18 signed by Magistrate Judge Sheila K. Oberto on 11/18/2016. Referred to Judge Dale A Drozd; Objections to F&R due by 12/22/2016. (Lundstrom, T)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RICKY TYRONE FOSTER, 10 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION AS UNTIMELY v. 11 12 No. 1:16-cv-00612-DAD-SKO HC DAVID DAVEY, Warden, California State Prison, Corcoran, (Doc. 18 ) 13 Respondent. 14 Petitioner Ricky Tyrone Foster is a state prisoner proceeding pro se with a petition for 15 16 writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent David Davey, Warden, 17 California State Prison, Corcoran, moves to dismiss the petition for having been filed beyond the 18 one-year statute of limitations. The undersigned recommends that the Court dismiss the petition 19 as untimely. 20 21 I. The Pending Petition Is Untimely On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 22 23 1996 (AEDPA), which applies to all petitions for writ of habeas corpus filed after its enactment. 24 Lindh v. Murphy, 521 U.S. 320, 327 (1997). AEDPA provides a one-year period of limitation in 25 which a petitioner may file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The 26 limitations period is measured from the latest of: 27 /// 28 1 1 (A) the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review; 2 3 (B) the date on which the impediment to filing a 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; 4 5 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 6 7 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 8 9 28 U.S.C. § 2244(d)(1). 10 11 12 13 14 15 The petition in this case challenges the January 4, 2010, decision of the California Board of Parole Hearings that denied Petitioner parole and deferred his next parole suitability hearing for ten years. The Board’s decision became final on May 4, 2010. This means that the statute of limitations period ran through May 4, 2011.1 Petitioner filed the pending § 2254 petition on May 2, 2016. Accordingly, the petition is untimely. II. 16 17 18 19 20 21 22 23 24 25 Petitioner Did Not Seek Equitable Tolling The one-year statutory period is intended to protect the federal judicial system from having to address stale claims. Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir. 2003). To effectuate that objective, the bar to achieve equitable tolling is set very high. Id. A habeas petitioner is entitled to equitable tolling of the one-year statute of limitations only if the petitioner shows (1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstance prevented timely filing. See Holland v. Florida, 560 U.S. 631, 634, 648 (2010); Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). The petitioner bears the burden of alleging facts sufficient to support equitable tolling. Pace v. Di Guglielmo, 544 U.S. 408, 418 (2005). Petitioner neither sought equitable tolling nor presented facts establishing entitlement to equitable tolling. 26 27 28 1 Petitioner did not initiate state court proceedings concerning the denial of parole before the conclusion of the statutory limitations period. He filed his first state proceeding, a petition for writ of habeas corpus, on August 6, 2014. 2 1 III. 2 Certificate of Appealability A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a 3 district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. 4 Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a 5 certificate of appealability is 28 U.S.C. § 2253, which provides: 6 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 7 8 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 9 10 11 12 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— 13 14 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 15 (B) the final order in a proceeding under section 2255. 16 17 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. 18 19 (3) The certificate of appealability under paragraph (1) shall indicate which specific issues or issues satisfy the showing required by paragraph (2). 20 21 If a court denies a habeas petition, the court may only issue a certificate of appealability 22 23 "if jurists of reason could disagree with the district court's resolution of his constitutional claims 24 or that jurists could conclude the issues presented are adequate to deserve encouragement to 25 proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). 26 Although the petitioner is not required to prove the merits of his case, he must demonstrate 27 /// 28 3 1 "something more than the absence of frivolity or the existence of mere good faith on his . . . 2 part." Miller-El, 537 U.S. at 338. 3 Reasonable jurists would not find the Court's determination that Petitioner is not entitled 4 to federal habeas corpus relief to be debatable or wrong, or conclude that the issues presented 5 6 required further adjudication. Accordingly, the Court declines to issue a certificate of 7 appealability. 8 IV. 9 10 Conclusion and Recommendation The undersigned recommends that the Court dismiss the Petition for writ of habeas corpus as untimely and decline to issue a certificate of appealability. 11 These Findings and Recommendations will be submitted to the United States District 12 13 14 Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, either party may file 15 written objections with the Court. The document should be captioned AObjections to Magistrate 16 Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and 17 filed within fourteen (14) days after service of the objections. The parties are advised that failure 18 to file objections within the specified time may constitute waiver of the right to appeal the District 19 Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. 20 21 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 24 IT IS SO ORDERED. Dated: November 18, 2016 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 25 26 27 28 4 .
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