(HC) Wilkins v. Cate, No. 2:2009cv03357 - Document 25 (E.D. Cal. 2010)

Court Description: ORDER signed by Judge Frank C. Damrell, Jr on 11/22/10 DECLINING to adopt 21 Findings and Recommendations. (Manzer, C)
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(HC) Wilkins v. Cate Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 DANIEL D. WILKINS, NO. S-09-3357-FCD-CMK-P Petitioner, 14 15 16 v. MATTHEW CATE, Respondent. 17 18 19 MEMORANDUM AND ORDER ----oo0oo---This matter is before the court on review of the findings 20 and recommendations (“F&R”) of the magistrate judge,1 filed 21 September 28, 2010, addressing petitioner Daniel D. Wilkins’ 22 (“Wilkins” or “Petitioner”) petition for a writ of habeas corpus 23 challenging the denial of his parole in 2007 by the California 24 Board of Prison Terms2 (“BPT” or “Board”). 25 found that petitioner’s writ was untimely and recommended that The magistrate judge 26 1 27 28 This matter was referred to a United States magistrate judge pursuant to 28 U.S.C. section 636(b)(1)(B) and Eastern District Local Rule 72-302. 2 The BPT is now known as the Board of Parole Hearings. Dockets.Justia.com 1 the instant action be dismissed. 2 the magistrate judge’s findings and recommendations. 3 reasons set forth below, the court declines to adopt the findings 4 and recommendations of the magistrate judge. 5 6 Petitioner filed objections to For the BACKGROUND The court adopts the factual and procedural background set 7 forth by the magistrate judge in his findings and 8 recommendations. (See F&R, filed Sept. 28, 2010, at 1-2). 9 STANDARD 10 When timely objections to findings by a magistrate judge are 11 filed, the district court must conduct a de novo determination of 12 the findings and recommendations as to issues of law. 13 § 636(b)(1). 14 part or in full the findings and recommendations. 15 636(b)(1)(C). The district court may adopt, reject, or modify in 16 17 28 U.S.C. 28 U.S.C. § ANALYSIS Petitioner objects to the findings and recommendations set 18 forth by the magistrate judge and argues that he filed his claim 19 in federal court within the one year statute of limitations 20 period. 21 limitations began to run 120 days after the BPT denied his parol, 22 when the decision became final. Respondent asserts that the 23 claims contained in Wilkins’ habeas petition now pending before 24 this court are untimely because the statute of limitations began 25 to run on June 13, 2007, the day Wilkins’ parole was initially 26 denied by the BPT. 27 28 Specifically, petitioner asserts that the statute of The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposed a one year statute of limitation on the filing of federal habeas corpus petitions. 28 U.S.C. § 2244(d)(1). The 1 statute of limitations for habeas petitions challenging parole 2 suitability hearings is based on § 2244(d)(1)(D): the date on 3 which the factual predicate of the claim or claims could have 4 been discovered through the exercise of due diligence. 5 v. McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003). 6 ordinarily deem the factual predicate to have been discovered the 7 day the decision becomes final, i.e., 120 days after the Board 8 finds a petitioner not suitable for parole.” 9 No. Civ. S-07-0733 MCE EFB P, 2008 WL 4218487, at *2 (E.D. Cal. See Redd “Courts Wilson v. Sisto, 10 Sept. 5, 2008) (citing Nelson v. Clark, No. 1:08-cv-00114 OWW SMS 11 HC, 2008 WL 2509509, at *4 (E.D. Cal. June 23, 2009)). 12 Stotts v. Sisto, No. CIV. S-08-1178-MCE-CMK-P, 2009 WL 2591029, 13 at *4 (E.D. Cal. Aug. 20, 2009); Van Houton v. Davison, No. CV 14 07-05256 AG (AN), 2009 WL 811596, at *9 (C.D. Cal. March 26, 15 2009); Woods v. Salazar, No. CV 07-7197 GW (CW), 2009 WL 2246237, 16 at *5 & n.9(C.D. Cal. Mar. 23, 2009) (citing cases); Perez v. 17 Sisto, No. Civ. S-07-0544 LKK DAD P, 2007 WL 3046006, at *4 (E.D. 18 Cal. Oct.18, 2007); Cal. Code Regs., tit. 15, § 2041(h) (Board 19 decisions are final 120 days after the hearing); Cal. Penal Code 20 § 3041(b) (same). 21 00086 OWW GSA HC, 2008 WL 1704089, at *10 (E.D. Cal. April 10, 22 2008) (deeming factual predicate to have been discovered on the 23 date of the Board decision). See also Contra McGuire v. Mendoza-Powers, No. 1:07-CV- 24 The statute of limitations is tolled during the time a 25 properly filed application for post-conviction relief is pending 26 in state court. 27 relief is “pending” during the entire time the petitioner is 28 attempting, through proper use of state court procedures, to A state court application for post-conviction present his claims. Nino v. Galaza, 183 F.3d 1003, 1006 (9th 1 Cir. 1999) (holding that “the statute of limitations is tolled 2 from the time the first state habeas petition is filed until the 3 California Supreme Court rejects the petitioner's final 4 collateral challenge.”). 5 period between a lower state court’s decision and the filing of a 6 notice of appeal with a higher state court, as well as the time 7 period in California’s unique collateral review system S where 8 there is no notice of appeal, but a party must file an original 9 state habeas petition in a higher court within a reasonable time. The word “pending” covers the time 10 Carey v. Saffold, 536 U.S. 214, 227 (2002). 11 is not “pending” during an unreasonable delay between state court 12 applications. 13 However, a petition See id. at 225. Like the majority of district courts that have considered 14 this issue, the court concludes that the factual predicate of a 15 petitioner’s claim becomes “discoverable” 120 days after the 16 board hearing, when the decision is final. 17 case, the statute of limitations began to run on October 11, 2007 18 S 120 days after the date that the Board denied parole. 19 than two months later, December 5, 2007, petitioner filed his 20 first state habeas petition in Superior Court. 21 subsequently filed a habeas petition in the California Court of 22 Appeal and then with the California Supreme Court. 23 California Supreme Court denied petitioner relief on February 11, 24 2009 and petitioner filed the instant federal petition nine 25 months later on November 21, 2009. 26 time between when he filed his first state habeas petition and 27 when the California Supreme Court denied his relief is subject to 28 Accordingly, in this Less Petitioner The Therefore, assuming that the 1 statutory tolling,3 petitioner’s claim was filed in federal court 2 approximately eleven months after the statute of limitations 3 began to run, and within the timely filing requirements set forth 4 in the AEDPA. 5 judge’s recommendation that the petition was untimely based upon 6 his conclusion that the statute of limitations began on the date 7 parole was denied, not on the date that the decision became 8 final. Therefore, the court does not adopt the magistrate 9 10 11 CONCLUSION For the foregoing reasons, the court declines to adopt the magistrate judge’s recommendations and his findings. 12 13 IT IS SO ORDERED. 14 DATED: November 22, 2010 15 FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 3 28 The court notes that the magistrate judge did not conclusively determine whether the delays in petitioner’s state filings were reasonable and therefore subject to statutory tolling.