Bell v. Department of Corrections and Rehabilitation

Filing 17

ORDER REQUIRING Respondent to Produce Documents signed by Magistrate Judge Michael J. Seng on 11/19/2010. (Sant Agata, S)

(HC) Bell v. Department of Corrections and Rehabilitation

Doc. 17

1 2 3 4 5 6 7 8 9 10 11 12 HORACE BELL, 13 Petitioner, 14 v. 15 16 17 Respondent. 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. Respondent is represented in this action by Janine W. Boomer, 21 Esq., of the Office of the Attorney General for the State of California. 22 I. 23 On April 22, 2010, Petitioner filed the instant federal petition for writ of habeas corpus 24 in this Court. On October 8, 2010, Respondent filed a motion to dismiss the petition as being 25 filed outside the one-year limitations period prescribed by 28 U.S.C. § 2244(d). (Mot., ECF No. 26 14.) On October 27, 2010, Petitioner filed an opposition to the motion to dismiss. (Opp'n, ECF 27 No. 16.) 28
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv-00770 LJO MJS HC ORDER REQUIRING RESPONDENT TO PRODUCE DOCUMENTS

DEPARTMENT OF CORRECTIONS AND REHABILITATION,

BACKGROUND

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II.

DISCUSSION Petitioner challenges a Rules Violation Report received in response to conduct

occurring on June 1, 2006. As noted, Respondent moved to dismiss based upon Petitioner's alleged failure to file his petition within the one year statute of limitations period. However, Respondent has not provided the Court, and the Court does not have, sufficient evidence to determine when the statute of limitations period commenced. The AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, subdivision (d) reads: (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 ­ (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; (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; (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 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (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. 28 U.S.C. § 2244(d). Respondent correctly notes that when a petition challenges an administrative decision,

24 § 2244(d)(1)(D) applies, and the limitations period begins to run from "the date on which the 25 factual predicate of the claim or claims presented could have been discovered through the 26 exercise of due diligence." Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004); Redd v. 27 McGrath, 343 F.3d 1077, 1081-83 (9th Cir. 2003). However, Respondent asserts that the 28 triggering date in this case was the day Petitioner was issued a Rules Violation Report for
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1 conduct occurring on that same date.1 (Mot. to Dismiss at 2, Ex. 1.) This assertion is incorrect 2 as is clear from authority cited by respondent: In Shelby v. Bartlett, the Ninth Circuit addressed 3 the petition of an Oregon inmate who challenged the loss of 100 days of "statutory good time" 4 as a penalty for a disciplinary violation. After reaffirming that § 2244(d)(1)(D) governed the 5 timeliness of petitions challenging administrative decisions, the court concluded that 6 "[petitioner] does not dispute that he received timely notice of the denial of his administrative 7 appeal on July 12, 2001, and he offers no evidence to the contrary. Therefore, the limitation 8 period began running the next day." Shelby, 391 F.3d at 1066.2 9 According to Respondent, Petitioner filed the present petition over 900 days after the

10 statute of limitations period elapsed. However, Respondent has not provided the Court with 11 documentation to enable the Court to determine when the statute of limitation period 12 commenced. Consequently, the Court cannot determine whether the federal petition was 13 timely or not. 14 To determine whether the Petition was timely or untimely, the Court will direct

15 Respondent to produce all relevant documents relating to the subject Rules Violation Report, 16 determinations thereon, all administrative appeals arising therefrom and/or other documents 17 reflecting the dates of these events. See Rules Governing Section 2254 Cases, Rule 7 ("Rule 18 7"). As stated in the advisory committee notes regarding the 2004 amendments to Rule 7, "the 19 rule has been changed to remove the reference to the `merits' of the petition in recognition that 20 a court may wish to expand the record in order to assist it in deciding an issue other than the 21 22 23 24 25 26 27 28
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Respondent suggests that Petitioner com m itte d the conduct in question, was issued a Rules Violation R e p o r t, was provided a hearing and found guilty all on the sam e date, June 1, 2006. Respondent relies on a copy o f the Rules Violation Report to support such assertions. However, the Rules Violation Report (attached as Exhibit 1 to the m o tio n to dism is s ) does not provide any inform a tio n as to the date of the hearing or its results. 2 T h e Ninth Circuit's application of law in Shelby is not am b ig u o u s or subject to any r e a s o n a b le interpretation other than a statem e n t that the one-year period begins once a prisoner's a d m in is tr a tiv e appeals process has ended. The other case cited by respondent, Redd v. McGrath, a p p lie s the sam e rule in the context of adm in is tr a tiv e appeals where a prisoner has been denied p a r o le . This is not an arcane rule unfam ilia r to respondent or his counsel. Respondent has been p a r ty to num e r o u s cases in this court where the tim in g rule of Shelby and Redd has been applied. R e s p o n d e n t's assertion that the lim ita tio n period begins the day after Petitioner com m itte d the c o n d u c t is not justified by authority set forth in the briefing or otherwise.

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1 merits of the petition." Rule 7, advisory committee notes. 2 3 ORDER Respondent is hereby ORDERED to produce all relevant documents relating to the

4 June 1, 2006 Rules Violation Report, administrative determinations thereon, all administrative 5 appeals and determinations arising therefrom, and/or other documents reflecting the date of 6 these events. Such documents shall be lodged with the Court within thirty (30) days of service 7 of this order. 8 9 10 11 IT IS SO ORDERED. 12 Dated: ci4d6 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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November 19, 2010

/s/ UNITED STATES MAGISTRATE JUDGE

Michael J. Seng

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