Luddon v. Curry et al, No. 3:2008cv00275 - Document 10 (N.D. Cal. 2010)
Court Description: ORDER GRANTING 9 MOTION TO DISMISS PETITION AS UNTIMELY. Signed by Judge Maxine M. Chesney on June 21, 2010. (mmcsec, COURT STAFF) (Filed on 6/21/2010)
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Luddon v. Curry et al Doc. 10 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 13 14 15 16 JAMES F. LUDDON, ) ) Petitioner, ) ) vs. ) ) B. CURRY, Warden, ) ) Respondent. ) ______________________________ ) No. C 08-0275 MMC (PR) ORDER GRANTING MOTION TO DISMISS PETITION AS UNTIMELY (Docket No. 9) On January 16, 2008, petitioner, a California prisoner incarcerated at the Correctional 17 Training Facility at Soledad and proceeding pro se, filed the above-titled petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254, challenging the denial of parole by the 19 California Board of Parole Hearings (“Board”). After reviewing the petition, the Court 20 ordered respondent to file an answer showing cause why the petition should not be granted, 21 or in the alternative, a motion to dismiss on procedural grounds. Respondent chose the latter 22 course and has filed a motion to dismiss the petition, on the ground that the petition is barred 23 by the applicable one-year statute of limitations. See 28 U.S.C. § 2244(d). Petitioner has not 24 filed an opposition, although he was informed in two court orders of his right to do so. 25 26 BACKGROUND In 1986, in the Superior Court of Contra Costa County (“Superior Court”), petitioner 27 was convicted of first degree murder and conspiracy to commit murder. He was sentenced to 28 a term of twenty-six years to life in state prison. On April 19, 2004, the Board found Dockets.Justia.com 1 petitioner unsuitable for parole. (Mot. Dismiss Ex. 1.) On March 12, 2005, petitioner mailed to the Superior Court a habeas petition 2 3 challenging the Board’s decision. (Id.) On April 26, 2005, the Superior Court’s order 4 denying the petition was filed. (Mot. Dismiss Ex. 2.) On December 22, 2005, petitioner mailed to the California Court of Appeal a habeas 5 6 petition challenging the Board’s decision. (Mot. Dismiss Ex. 3.) On January 5, 2006, the 7 Court of Appeal’s order denying the petition was filed. (Mot. Dismiss Ex. 4.) 8 9 United States District Court For the Northern District of California 10 On May 6, 2007, petitioner mailed to the California Supreme Court a habeas petition challenging the Board’s decision. (Mot. Dismiss Ex. 5.) On September 19, 2007, the California Supreme Court’s order denying the petition was filed. (Mot. Dismiss Ex. 6.) 11 On January 6, 2008, petitioner delivered the instant petition to prison officials for 12 mailing. (See Pet. & attached proof of service). The petition was filed in this court on 13 January 16, 2008. (Id.)1 14 Petitioner claims the denial of parole violated his federal constitutional right to due 15 process because the Board’s decision that petitioner’s release would pose an unreasonable 16 risk to public safety was not supported by some evidence and was the result of the Board’s 17 biased “no parole” policy. 18 19 20 DISCUSSION A. Standard of Review The Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996 became law 21 on April 24, 1996, and imposed for the first time a statute of limitations on petitions for a 22 writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non- 23 capital state convictions or sentences must be filed within one year of the latest of: 24 25 1 For purposes of the instant motion, respondent has assumed that the proofs of service attached to petitioner’s state and federal filings evidence the effective date of filing under the mailbox rule. (See Mot. Dismiss at 3:8-14 & n.1 (citing Saffold v. Newland, 250 F.3d 1262, 27 1268 (9th Cir. 2001) (holding, under AEDPA, prisoner’s habeas petition deemed filed on date of delivery to prison officials for mailing, including habeas petitions filed in state court), 28 vacated and remanded on other grounds, Carey v. Saffold, 536 U.S. 214 (2002).) 26 2 1 (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; 2 3 (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; 4 5 (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 6 7 8 United States District Court For the Northern District of California 9 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). The one-year limitations period applies to all habeas petitions filed by persons in 10 custody pursuant to the judgment of a state court, “even if the petition challenges a pertinent 11 administrative decision rather than a state court judgment.” See Shelby v. Bartlett, 391 F.3d 12 1061, 1063 (9th Cir. 2004). Such administrative decisions include decisions denying parole. 13 See Redd v. McGrath, 343 F.3d 1077, 1080 n.4 (9th Cir. 2003) (assuming, without deciding, 14 one-year statute of limitations applies to decision denying parole). Further, of the four 15 possible starting dates for the one-year limitations period set forth at 28 U.S.C. § 2244(d)(1), 16 the date set forth under sub-paragraph D is the date applicable to a petition challenging a 17 decision denying parole. See id. at 1082. 18 Under 28 U.S.C. § 2244(d)(1)(D), the one-year limitations period begins to run one 19 day after the date the petitioner could have discovered the “factual predicate” of his federal 20 habeas corpus claim. See id.2 “[T]he date of the ‘factual predicate’ . . . . is determined 21 independently of the exhaustion requirement by inquiring when [the petitioner] could have 22 learned of the factual basis for his claim through the exercise of due diligence.” Id. The 23 petitioner learns of the factual basis of that claim at the time the decision becomes final. See 24 id. at 1079 (holding limitations period began to run when Board of Prison Terms denied 25 26 2 The one-year period is calculated in accordance with Rule 6 of the Federal Rules of Civil Procedure, the general rule for computing time in federal courts. See Patterson v. 27 Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Under Rule 6, the day of the event that triggers the time period is excluded from the computation, while the last day of the time 28 period is included. Fed. R. Civ. P. 6(a)(1). 3 United States District Court For the Northern District of California 1 prisoner’s administrative appeal challenging decision denying parole). Here, the 2 administrative decision at issue, the Board’s April 19, 2004 denial of parole suitability, 3 became final when issued, because there are no provisions for further administrative review. 4 See id. at 1079, 1084. Consequently, the one-year limitations period began to run the next 5 day, on April 20, 2004, and the presumptive filing date for petitioner’s federal habeas 6 petition was one year later, April 20, 2005. As the instant petition was not delivered to 7 prison officials for mailing until January 6, 2008, the petition, absent statutory or equitable 8 tolling,3 is untimely. 9 B. Statutory Tolling 10 The one-year statute of limitations is tolled under § 2244(d)(2) for the “time during 11 which a properly filed application for State post-conviction or other collateral review with 12 respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2); see Redd, 13 343 F.3d at 1084 (holding prisoner challenging administrative decision receives statutory 14 tolling for period during which state habeas petition pending). The statute of limitations is 15 not tolled, however, during the time between the date on which the relevant final decision 16 under 28 U.S.C. § 2244(d)(1) is issued and the date on which the first state collateral 17 challenge is filed. Nino v. Galaza , 183 F.3d 1003, 1006 (9th Cir. 1999). Thus, in the instant 18 case, the statute began to run on April 20, 2004, the day after the Board’s decision became 19 final, and continued to run for 326 days, until petitioner mailed his petition to the Superior 20 Court on March 12, 2005. 21 Ordinarily, the one-year limitations period is tolled under § 2244(d)(2) from the time a 22 California prisoner files his first state habeas petition until the California Supreme Court 23 rejects his final collateral challenge. Carey v. Saffold, 536 U.S. 214, 219-20 (2006). 24 Consequently, in the instant case, the limitations period would be tolled continuously from 25 March 12, 2005, until September 19, 2007. Respondent argues, however, that petitioner is 26 27 3 The Court does not consider herein the issue of equitable tolling. Petitioner does not argue in his petition that he is entitled to equitable tolling, and no grounds for such tolling are 28 apparent from the record that has been developed in this matter. 4 United States District Court For the Northern District of California 1 not entitled to such continuous tolling of the limitations period because petitioner 2 unreasonably delayed in filing his state habeas petitions in the Court of Appeal and the 3 California Supreme Court. In Evans v. Chavis, 546 U.S. 189 (2006), the United States 4 Supreme Court clarified that “only a timely appeal” tolls the one-year statute of limitations, 5 and “in California, ‘unreasonable’ delays are not timely.” Id. at 197 (emphasis in original).4 6 Where there is no clear indication from the state court as to whether a petition was timely 7 under California law, the federal court must itself examine the delay and determine whether 8 the petition was filed within what California would consider a reasonable period of time. Id. 9 at 197-98. Even when a California state habeas petition is denied “on the merits,” the federal 10 court must determine whether the petition was timely, if the issue of timeliness was not 11 expressly addressed by the state court. Id. 12 Here, respondent argues that petitioner is not entitled to statutory tolling for the 250 13 days that elapsed between the denial of his petition by the Superior Court on April 16, 2005, 14 and the mailing of petitioner’s petition to the Court of Appeal on December 22, 2005, and for 15 the 486 days that elapsed between the denial of his petition by the Court of Appeal on 16 January 5, 2006, and the mailing of his petition to the California Supreme Court on May 6, 17 2007. 18 Both the Court of Appeal and the California Supreme Court summarily denied 19 petitioner’s habeas petitions, without expressly addressing the issue of timeliness. Under 20 such circumstances, this Court must apply Chavis and determine whether the petitions were 21 filed within what California would consider a reasonable period of time. See id. at 197 (“If 22 the appearance of the words ‘on the merits’ [in a California state court decision denying 23 habeas relief] does not automatically warrant a holding that the filing was timely, the absence 24 of those words could not automatically warrant a holding that the filing was timely.”) 25 26 4 In so doing, Evans reiterated the holding of Carey v. Saffold, 536 U.S. 214 (2002), that the requirement that an appeal be filed without unreasonable delay applies, by analogy, 27 to the filing of petitions for appellate review under California’s collateral review process, wherein a state prisoner may seek review of an adverse lower court decision by filing an 28 original petition rather than a notice of appeal. Id. at 192-93. 5 1 In Chavis, there was an unexplained six-month delay between the denial of the 2 petitioner’s state habeas petition in the California Court of Appeal and the filing of his 3 subsequent petition in the California Supreme Court. Chavis found the delay unreasonable, 4 holding as follows: 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Six months is far longer than the short periods of time, 30 to 60 days, that most States provide for filing an appeal to the state supreme court. It is far longer than the 10-day period California gives a losing party to file a notice of appeal in the California Supreme Court. We have found no authority suggesting, nor found any convincing reasons to believe, that California would consider an unjustified or unexplained 6-month delay reasonable. Nor do we see how an unexplained delay of this magnitude could fall within the scope of the federal statutory word “pending” as interpreted in Saffold. Id. at 201 (internal quotations and citations omitted). Chavis thus made clear that, in California, an unjustified delay of six months, or 180 days, is presumptively unreasonable. Here, as noted, the length of delay between the Superior Court’s denial and petitioner’s filing in the Court of Appeal was 240 days, i.e., over eight months, and the length of delay between the Court of Appeal’s denial and petitioner’s filing in the California Supreme Court was 486 days, i.e., one year and four months. Consequently, the Court finds that, absent justification, California would consider such delays unreasonable. In the instant petition, petitioner has offered no justification for the delays, and none is apparent from the record. Accordingly, petitioner is not entitled to statutory tolling for the 736 days of unreasonable delay. Further, petitioner is not entitled to statutory tolling for the 109 days that elapsed between the denial of his petition by the California Supreme Court on September 19, 2007, and the effective filing date of the instant petition on January 6, 2008. In sum, by the time petitioner filed his federal habeas petition, the following periods of time had run against the statute of limitations: (1) 326 days before the filing of petitioner’s Superior Court petition on March 12, 2005; (2) 240 days between the Superior Court’s April 26, 2005, decision, and the filing of the petition in the Court of Appeal on December 22, 2005; (3) 486 days between the Court of Appeal’s January 5, 2006, decision and the filing of the petition in the California Supreme Court on May 6, 2007; and (4) 109 6 1 days between the California Supreme Court’s decision, and the filing of the instant petition 2 on January 6, 2008. In total, 1161 days elapsed from the date on which the Board’s decision 3 to deny parole became final and the date on which petitioner filed the instant federal habeas 4 petition. As this number of days exceeds the one-year limitations period, respondent’s 5 motion to dismiss the petition as untimely will be granted. 6 7 8 United States District Court For the Northern District of California 9 CONCLUSION For the foregoing reasons, respondent’s motion to dismiss the petition as untimely is hereby GRANTED and the petition for a writ of habeas corpus is hereby DISMISSED. This order terminates Docket No. 9. 10 The Clerk shall close the file. 11 IT IS SO ORDERED. 12 13 14 DATED: June 21, 2010 _________________________ MAXINE M. CHESNEY United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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