(HC) Randle v. Board of Prison Terms et al, No. 2:2009cv01386 - Document 29 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/14/2011 RECOMMENDING that respondents' 26 motion to dismiss be granted, and (A) ptnr's claims re violations of the Ninth Amendment, CA stat law, and biblical l aw be dismissed w/out leave to amend; (B) ptnr's remaining claims be dismissed w/ leave to file a second amended petition w/in 30 days of an order adopting these f&R; respondent's be directed to file a response to the second amended petition; and ptnr's 21 motion for leave to file supplemental brief be denied. Referred to Judge John A. Mendez; Objections due w/in 14 days. (Yin, K)
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(HC) Randle v. Board of Prison Terms et al Doc. 29 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CLARENCE RANDLE, 11 12 13 14 Petitioner, No. CIV S-09-1386 JAM EFB P vs. BOARD OF PRISON TERMS, et al., Respondents. FINDINGS AND RECOMMENDATIONS / 15 16 Petitioner is a county prisoner seeking a writ of habeas corpus pursuant to 28 U.S.C. § 17 2254. Respondents move to dismiss on the ground that this action is untimely and fails to allege 18 sufficient facts to state a federal habeas claim. To the extent petitioner bases his request for 19 relief on alleged violations of state law, respondents seek dismissal of those state law claims. 20 Alternatively, respondents move for a more definite statement under Federal Rule of Civil 21 Procedure 12(e). For the reasons explained below, respondents have not shown the petition to be 22 untimely. However, the petition lacks sufficient factual specificity, as it is currently impossible 23 to determine precisely what actions by respondents the petitioner is challenging in the instant 24 petition. Further, to the extent petitioner claims that the Ninth Amendment, various state-law 25 provisions, and biblical law have been violated, such claims are not viable and should therefore 26 be dismissed. Accordingly, the undersigned recommends that respondents’ motion to dismiss be 1 Dockets.Justia.com 1 granted as provided below. 2 I. Background1 3 After serving a prison sentence on a domestic violence conviction, petitioner was 4 released on parole in 2006 subject to a special condition that he not contact his wife (hereinafter, 5 the “no-contact condition”). Am. Pet., Dckt. No. 10, at 3-4 & Ex. C; Supp. Exs., Dckt. No. 8, 6 Ex. B. Petitioner has been charged with violating that condition and re-incarcerated numerous 7 times. Supp. Exs. No. 8, Ex. B; Am. Pet. at 4. Most recently, the no-contact condition was 8 reimposed upon petitioner’s release in February or March of 2009, and petitioner was given an 9 8-month sentence after having been found to have violated the condition on May 27, 2009. 10 Supp. Exs., Ex. B; Am. Pet. at 4. In the instant petition, petitioner alleges that the no-contact 11 condition was invalid as violative of the 1st, 5th, and 9th Amendments to the federal 12 Constitution, and thus respondents unlawfully revoked his parole based on his violation of the 13 allegedly invalid condition. Am. Pet. at 5, 9; Mem., Dckt. No. 7, at 1-3; “Complaint,” Dckt. No. 14 5, at 1-2. 15 II. Statute of Limitations 16 As a threshold matter, respondents argue that the petition is time-barred. A one-year 17 limitation period for seeking federal habeas relief begins to run from the latest of the date the 18 judgment became final on direct review, the date on which a state-created impediment to filing is 19 removed, the date the United States Supreme Court makes a new rule retroactively applicable to 20 cases on collateral review or the date on which the factual predicate of a claim could have been 21 discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). 22 There is no tolling of this one-year period “from the time a final decision is issued on 23 direct state appeal [to] the time the first state collateral challenge is filed.” Nino v. Galaza, 183 24 F.3d 1003, 1006 (9th Cir. 1999). However, once a petitioner properly files a state post- 25 26 1 These facts are gathered from the Amended Petition (Docket No. 10) and various supplemental documents filed by petitioner (Docket No. 5 “Complaint of Invalid Conditions”; Docket No. 7 “Memorandum”; Docket No. 8 “Supplemental Exhibits”). 2 1 conviction application the period is tolled, and remains tolled for the entire time that application 2 is “pending.” 28 U.S.C. § 2244(d)(2). “[A]n application is properly filed when its delivery and 3 acceptance are in compliance with the applicable laws and rules governing filings.” Artuz v. 4 Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post-conviction application is 5 “pending” during the intervals between a lower court decision and filing a new petition in a 6 higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002). 7 8 Finally, a federal habeas petition does not toll the limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 9 The one-year limitations period may, in some circumstances, be subject to equitable 10 tolling. The United States Supreme Court has recognized that a habeas petitioner “seeking 11 equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his 12 rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. 13 DiGuglielmo, 544 U.S. 408, 418 (2005). In light of this pronouncement, the Ninth Circuit has 14 clarified its own standard as follows: 15 The threshold for obtaining equitable tolling is very high, but it applies where a petitioner shows that despite diligently pursuing his rights, some extraordinary circumstance prevented him from timely filing. 16 17 Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner has the burden of 18 showing facts entitling him to equitable tolling. Miranda v. Castro, 292 F.3d 1063, 1065 (9th 19 Cir. 2002). 20 Respondents contend that the limitations period on petitioner’s claims began to run on 21 June 7, 2006, the day after the no-contact condition was initially imposed on him, because that is 22 the date that the factual predicate of petitioner’s claims could have been discovered under 23 § 2244(d)(1)(D). Thus, respondents argue, the time to file the instant petition expired on June 7, 24 2007, and the petition – filed on May 19, 2009 and amended November 24, 2009 – is untimely. 25 //// 26 //// 3 1 It does appear that petitioner may wish to challenge the legality of each of five revocations 2 (dated September 18, 2006, August 7, 2007, February 8, 2008, June 5, 2008, and May 7, 20092), 3 as he requests that the court order respondents to subtract the time he has spent incarcerated due 4 to each revocation from his controlling discharge date. Am. Pet. at 16. As some of these actions 5 occurred more than a year before the date the petition was filed, some of the claims for relief 6 may be barred by the limitations period. However, the no-contact condition was reimposed on 7 petitioner, and his parole revoked for violation thereof, less than one year before the filing of the 8 petition (in March and May of 2009, respectively). Respondents have cited no authority for the 9 proposition that the limitations period under AEDPA begins to run when a parole condition is 10 initially imposed, rather than when it is later reimposed or when parole is actually revoked.3 Nor 11 have respondents exposited any argument supporting that position. Thus, respondents have not 12 shown that petitioner’s claims that the no-contact condition is unconstitutional and that the 13 revocation(s) of parole occurring within one year prior to the filing of the petition were thus 14 unlawful are time-barred. Accordingly, the petition should not be entirely dismissed as 15 untimely. 16 III. The Amended Petition Fails to State Sufficient Facts 17 Respondents next argue that the petition fails to state facts sufficient to state a claim for 18 federal habeas relief, because “he does not state any facts regarding how his rights were 19 violated,” including “facts regarding the alleged contact with his wife, a parole revocation 20 hearing or what transpired, or even on what basis his federal rights were violated during such a 21 2 22 23 24 25 26 These dates are taken from the Amended Petition, but it is not clear whether they correspond to the date that petitioner’s parole was actually revoked or the date he was charged with violating his parole. For example, the last date cited by petitioner is May 7, 2009, and other documents filed by petitioner show that this is the date he was most recently charged with violating parole and that he was found guilty of that charge on May 27, 2009. Supp. Exs., Dckt. No. 8, Ex. B; Am. Pet., Dckt. No. 10, at 4. 3 In fact, respondents argue elsewhere in their motion that a challenge to a condition of parole rather than its revocation is not cognizable on federal habeas as not affecting the fact or duration of confinement. 4 1 hearing.” Resps.’ Mot. to Dism., Dckt. No. 26, at 4. The court has reviewed the amended 2 petition and concludes that it apprises respondent of much of the basis of petitioner’s claims, 3 clearly alleging that the imposition of the no-contact condition violated the 1st, 5th, and 9th 4 Amendments to the federal Constitution and the revocation of parole based thereon was therefore 5 unlawful. Dckt. No. 10, Am. Pet. at 3-5, 9. Petitioner raises no challenge to the procedures 6 employed at his revocation hearing; rather he claims that the revocation was unlawful because 7 the no-contact condition was constitutionally infirm. Facts regarding the method in which 8 petitioner violated the allegedly unconstitutional condition and the conduct of the revocation 9 hearing are not necessary to support this claim. 10 While the petition does apprise the court and respondent of many of the facts and the 11 constitutional provisions petitioner believes have been violated, it fails to state a claim under the 12 Ninth Amendment as a matter of law. The Ninth Amendment provides simply, “The 13 enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage 14 others retained by the people.” U.S. CONST., amend. 9. It “has not been interpreted as 15 independently securing any constitutional rights for purposes of making out a constitutional 16 violation.” Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991). Thus, petitioner’s 17 claim under the Ninth Amendment should be dismissed. 18 Further, as noted in the previous section, the amended petition is not clear as to which 19 parole revocations petitioner wishes to challenge. In addition, petitioner has placed many of his 20 allegations in supplemental pleadings rather than in the petition itself. Under Local Rule 220, 21 the petition must be complete in itself, without reference to supplemental pleadings or exhibits. 22 Because it is impossible to determine which parole revocations petitioner wishes to challenge, 23 the court should grant respondents’ motion to dismiss with leave to amend so that petitioner may 24 file a second amended petition to clarify precisely what acts he wishes to challenge. In the 25 second amended petition, petitioner should state clearly whether he wishes to challenge each of 26 the five parole revocations or merely the most recent revocation. If petitioner wishes to 5 1 challenge all of the revocations, he should provide the dates on which parole was revoked each 2 time, so that respondents can evaluate any limitations or exhaustion issues raised by such claims. 3 Additionally, the second amended petition must include all allegations that petitioner wishes the 4 court to consider as part of the petition, rather than submitting such allegations piecemeal in 5 supplemental briefs.4 6 IV. Non-Cognizable Claims 7 The Amended Petition cites numerous state-law provisions, and it appears that petitioner 8 seeks relief, in part, based on such authorities. For example, petitioner argues that the no-contact 9 condition is unlawful because it was not requested by his wife as required by California law. 10 Am. Pet. at 13-14. As claimed violations of state law are not cognizable on federal habeas, 11 petitioner’s claims that the no-contact condition violated state law should be dismissed without 12 leave to amend. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 13 Petitioner also cites Bible passages as authority supporting his petition. Claimed 14 violations of biblical law are not cognizable on federal habeas. 28 U.S.C. § 2254(a) (providing 15 that federal habeas relief is available “only on the ground that [the prisoner] is in custody in 16 violation of the Constitution or laws or treaties of the United States.”). Thus, any claims based 17 on alleged violations of “biblical law ” must be dismissed without leave to amend. 18 V. Conclusion and Recommendations Respondents have not shown that the petition is untimely, but have shown that it lacks 19 20 factual specificity, and accordingly the motion to dismiss the petition should be granted. 21 Petitioner should be given the opportunity to file a second amended petition informing 22 respondents of each instance of allegedly unlawful conduct that petitioner wishes to challenge. 23 //// 24 4 25 26 Petitioner has submitted one such supplemental brief with the heading, “Motion for Leave to File a Supplemental Brief.” Dckt. No. 21. The undersigned recommends denying that motion as moot in light of the recommendation that the petition be dismissed with leave to amend to file a second amended petition including all allegations. 6 1 To the extent petitioner seeks relief based on violations of the Ninth Amendment, state law, 2 and/or biblical law, such claims should be dismissed without leave to amend. 3 Accordingly, IT IS HEREBY RECOMMENDED that: 4 1. Respondents’ April 15, 2010 motion to dismiss be granted, and 5 6 a. Petitioner’s claims that respondents have violated the Ninth Amendment, California state law, and biblical law be dismissed without leave to amend. 7 b. Petitioner’s remaining claims be dismissed with leave to amend, and petitioner 8 be given leave to file a second amended petition clarifying which act or acts petitioner wishes to 9 challenge and the date(s) of such act or acts and stating his claims completely without reference 10 to supplemental briefing within 30 days of service of an order by the district judge adopting 11 these findings and recommendations. 12 13 14 15 2. Respondents be directed to file a response to the second amended petition within the time provided by Federal Rule of Civil Procedure 12(a). 3. Petitioner’s March 9, 2010 motion for leave to file a supplemental brief (Docket No. 21) be denied. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 21 shall be served and filed within ten days after service of the objections. The parties are advised 22 that failure to file objections within the specified time may waive the right to appeal the District 23 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 Dated: February 14, 2011. 25 26 7
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