Smith v. Pfeiffer
FINDINGS and RECOMMENDATION to Grant Respondent's 21 Motion to Dismiss and Dismiss Petition for Writ of Habeas Corpus, signed by Magistrate Judge Stanley A. Boone on 8/2/17. Referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Gonzalez, R)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Case No. 1:16-cv-00200-LJO-SAB-HC
FINDINGS AND RECOMMENDATION TO
GRANT RESPONDENT’S MOTION TO
DISMISS AND DISMISS PETITION FOR
WRIT OF HABEAS CORPUS
(ECF No. 16)
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
18 pursuant to 28 U.S.C. § 2254.
On November 2, 2010, Petitioner was issued a rules violation report (“RVR”) for
22 destruction of state property. The RVR was reissued and reheard two times. The final
23 disciplinary hearing took place on July 9, 2012. The Senior Hearing Officer found Petitioner
24 guilty. Petitioner was assessed a sixty-day credit forfeiture and a charge of $56.76. (ECF No. 1 at
25 41–47). Petitioner administratively appealed the decision. On September 24, 2012, the Office of
26 Appeals rejected the appeal and stated: “The issue you are appealing received a modification
27 order at the previous level of review. You must allow sufficient time for the modification order
Page numbers refer to the ECF page numbers stamped at the top of the page.
1 to be completed prior to submitting the issue to the next level of review.” (ECF No. 1 at 33). Ten
2 months later, on June 24, 2013, the appeal was canceled because Petitioner did not resubmit his
3 appeal until May 7, 2013, and therefore had “exceed[ed] [the] time constraints to submit for third
4 level review.” (ECF No. 1 at 32).
On March 6, 2014,2 Petitioner filed a state petition for writ of habeas corpus in the Del
6 Norte County Superior Court. (ECF No. 21 at 9–71). The superior court denied the petition as
7 untimely on May 1, 2014. (ECF No. 21 at 73–74). On July 15, 2014, Petitioner filed a state
8 habeas petition in the California Court of Appeal, First Appellate District, which summarily
9 denied the petition on July 29, 2014. (ECF No. 21 at 77–145). On April 16, 2015,3 Petitioner
10 filed a state habeas petition in the California Supreme Court, which denied the petition on July
11 15, 2015. (ECF No. 21 at 147–256).
On January 5, 2016, Petitioner filed the instant federal petition for writ of habeas corpus
13 in the United States District Court for the Northern District of California. (ECF No. 1). On
14 February 11, 2016, the petition was transferred to this Court. (ECF No. 5). On January 9, 2017,
15 the Court ordered Petitioner to show cause why the petition should not be dismissed as
16 untimely.4 (ECF No. 12). On March 9, 2017, the Court discharged the order to show cause
17 because the Court was unable to determine whether the petition was timely filed based on the
18 record before the Court at the time. (ECF No. 15).
On May 9, 2017, Respondent filed a motion to dismiss the petition on the grounds that
20 the petition is untimely, unexhausted, and procedurally barred. (ECF No. 21). Petitioner filed an
21 opposition, and Respondent filed a reply. (ECF Nos. 24, 26).
Pursuant to the mailbox rule, a pro se prisoner’s habeas petition is filed “at the time . . . [it is] delivered . . . to the
prison authorities for forwarding to the court clerk.” Hernandez v. Spearman, 764 F.3d 1071, 1074 (9th Cir. 2014)
(alteration in original) (internal quotation marks omitted) (quoting Houston v. Lack, 487 U.S. 266, 276 (1988). The
mailbox rule applies to both federal and state habeas petitions. Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir.
The petition has a received stamp date of April 16, 2015, and a filed stamp date of April 30, 2015. (ECF No. 21 at
147). The Court will deem the petition filed on July 14, 2014, the date most favorable to Petitioner.
The order to show cause was issued by Magistrate Judge Sandra M. Snyder. Thereafter, the case was reassigned to
the undersigned. (ECF No. 13).
A. Statute of Limitations
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act
5 of 1996 (“AEDPA”). AEDPA imposes various requirements on all petitions for writ of habeas
6 corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v.
7 Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the
8 enactment of AEDPA and is therefore governed by its provisions. AEDPA imposes a one-year
9 period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28
10 U.S.C. § 2244(d)(1). Section 2244(d) provides:
(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.
25 28 U.S.C. § 2244(d).
The Ninth Circuit has held that when a habeas petitioner challenges an administrative
27 decision, § 2244(d)(1)(D) applies and AEDPA’s one-year limitation period runs from when the
28 factual predicate of the habeas claim could have been discovered through the exercise of due
1 diligence. Mardesich v. Cate, 668 F.3d 1164, 1172 (9th Cir. 2012). The Ninth Circuit further
2 held that “[a]s a general rule, the state agency’s denial of an administrative appeal is the ‘factual
3 predicate’ for such habeas claims.” Id. Here, Petitioner’s administrative appeal was canceled at
4 the third level of review on June 24, 2013, and Petitioner did not appeal the cancellation.
5 Accordingly, the one-year limitation period commenced running the following day, June 25,
6 2013, and absent tolling, was set to expire on June 24, 2014. See Patterson v. Stewart, 251 F.3d
7 1243, 1246 (9th Cir. 2001) (citing Fed. R. Civ. P. 6(a)).
1. Statutory Tolling
The “time during which a properly filed application for State post-conviction or other
10 collateral review with respect to the pertinent judgment or claim is pending shall not be counted
11 toward” the one-year limitation period. 28 U.S.C. § 2244(d)(2). Even assuming that the
12 limitation period was tolled during the pendency of Petitioner’s three state habeas petitions, the
13 Court finds that the instant federal petition was filed outside the one-year limitation period when
14 statutory tolling is applied.
Two hundred fifty-four days elapsed between the date Petitioner’s administrative appeal
16 was canceled (June 24, 2013) and the date Petitioner filed his first state habeas petition in the Del
17 Norte County Superior Court (March 6, 2014). The Court assumes, without deciding, that
18 AEDPA’s one-year clock stopped while Petitioner’s three state habeas petitions were pending
19 (March 6, 2014–July 15, 2015). Thereafter, 173 days elapsed before Petitioner filed the instant
20 federal habeas petition (January 5, 2016). This adds up to a total of 427 days. Accordingly, the
21 instant federal petition is untimely unless Petitioner establishes that equitable tolling is
2. Equitable Tolling
The limitation period is subject to equitable tolling if the petitioner demonstrates “‘(1)
25 that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
26 stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)
27 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner bears the burden of alleging
28 facts that would give rise to tolling. Holland, 560 U.S. at 649; Pace, 544 U.S. at 418.
Petitioner argues that he is entitled to equitable tolling because from September 29, 2010
2 to January 30, 2014, Petitioner was occupied with preparing pleadings in his other cases. (ECF
3 No. 24 at 6–7). Additionally, from October 2012 to August 2014, Petitioner was placed in the
4 Security Housing Unit (“SHU”), which limited his access to the law library and legal materials.
5 (Id. at 9). The Ninth Circuit has held that being in administrative segregation with limited access
6 to the law library does not constitute an extraordinary circumstance warranting equitable tolling.
7 Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009). Moreover, the Court notes that during the
8 time Petitioner was in the SHU, Petitioner filed an opening appellate brief, a federal habeas
9 petition, a motion for reconsideration, and petition for certiorari. (ECF No. 24 at 6–7). Petitioner
10 does not provide an explanation as to why being in the SHU with limited law library access
11 prevented him from timely filing the instant federal habeas petition but did not prevent him from
12 preparing these other filings. Based on the foregoing, Petitioner is not entitled to equitable
13 tolling. Therefore, as the instant petition was not timely filed, dismissal is warranted on this
A petitioner in state custody who is proceeding with a petition for writ of habeas corpus
17 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based
18 on comity to the state court and gives the state court the initial opportunity to correct the state’s
19 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v.
20 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by
21 providing the highest state court with a full and fair opportunity to consider each claim before
22 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v.
23 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971).
Here, the California Supreme Court denied Petitioner’s petition with citation to In re
25 Dexter, 25 Cal. 3d 921, 925–26 (Cal. 1979). (ECF No. 21 at 256). The pages cited by the
26 California Supreme Court provide that “prisoners are generally required to seek administrative
27 relief before resorting to the courts.” Dexter, 25 Cal. 3d at 926. The Ninth Circuit has held that
28 “[f]or the purposes of the exhaustion doctrine . . . [i]f the denial of the habeas corpus petition
1 includes a citation of an authority which indicates that the petition was procedurally deficient or
2 if the California Supreme Court so states explicitly, then the available state remedies have not
3 been exhausted as the California Supreme Court has not been given the required fair opportunity
4 to correct the constitutional violation.” Harris v. Superior Court, 500 F.3d 1124, 1128 (9th Cir.
5 1974) (en banc). District courts have regularly held that California Supreme Court denials with
6 citation to Dexter indicate that the petitioner has not exhausted state judicial remedies. See, e.g.,
7 Herrera v. Gipson, No. 2:12-cv-2982 TLN DAD P, 2014 WL 5463978, at *2 (E.D. Cal. Oct. 27,
8 2014) (collecting cases).
Petitioner has not provided the California Supreme Court with a full and fair opportunity
10 to consider each claim before presenting it to the federal court. Therefore, the petition is
11 unexhausted, and the Court cannot proceed to the merits of those claims. 28 U.S.C. § 2254(b)(1).
12 Accordingly, dismissal is warranted on this ground.
C. Procedural Default
A federal court will not review a petitioner’s claims if the state court has denied relief on
15 those claims pursuant to a state law procedural ground that is independent of federal law and
16 adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729–30 (1991). This
17 doctrine of procedural default is based on the concerns of comity and federalism. Id. at 730–32.
18 However, there are limitations as to when a federal court should invoke procedural default and
19 refuse to review a claim because a petitioner violated a state’s procedural rules. Procedural
20 default can only block a claim in federal court if the state court “clearly and expressly states that
21 its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989).
To qualify as “independent,” a state procedural ground “must not be ‘interwoven with the
23 federal law.’” Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (quoting Michigan v.
24 Long, 463 U.S. 1032, 1040–41 (1983)). “To qualify as an ‘adequate’ procedural ground, a state
25 rule must be ‘firmly established and regularly followed.’” Walker v. Martin, 562 U.S. 307, 316
26 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60 (2009)). The Ninth Circuit has taken a burden27 shifting approach to determining the adequacy of a state procedural ground. See Bennett, 322
28 F.3d at 586. First, the state must plead an independent and adequate state procedural bar as an
1 affirmative defense. The burden then shifts to the petitioner “to place that defense in issue.” Id.
2 The petitioner’s burden can be satisfied by “asserting specific factual allegations that
3 demonstrate the inadequacy of the state procedure, including citation to authority demonstrating
4 inconsistent application of the rule.” Id. If the petitioner satisfies his burden, the burden shifts
5 back to the state, which bears “the ultimate burden of proving the adequacy” of the state
6 procedural bar. Id. at 585–86.
Here, the California Supreme Court denied Petitioner’s habeas petition with a citation to
8 Dexter, requiring exhaustion of administrative remedies. (ECF No. 21 at 256). Respondent has
9 met the initial burden of pleading the state procedural rule requiring exhaustion of administrative
10 remedies. Petitioner does place the defense in issue given that he simply argues that the citation
11 to Dexter constituted a merits determination. See Jameson v. Yates, 397 F. App’x 406, 407 (9th
12 Cir. 2010) (finding district court properly determined it was barred from reaching merits of
13 claims by the state meeting initial burden of adequately pleading the existence of California’s
14 independent and adequate procedural rule requiring exhaustion of administrative remedies).
15 Accordingly, dismissal is warranted on this ground.
Based on the foregoing, the Court HEREBY RECOMMENDS that:
1. Respondent’s motion to dismiss (ECF No. 16) be GRANTED; and
2. The petition for writ of habeas corpus be DISMISSED.
This Findings and Recommendation is submitted to the assigned United States District
22 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local
23 Rules of Practice for the United States District Court, Eastern District of California. Within
24 THIRTY (30) days after service of the Findings and Recommendation, any party may file
25 written objections with the court and serve a copy on all parties. Such a document should be
26 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the
27 objections shall be served and filed within fourteen (14) days after service of the objections. The
28 assigned United States District Court Judge will then review the Magistrate Judge’s ruling
1 pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within
2 the specified time may waive the right to appeal the District Court’s order. Wilkerson v.
3 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th
4 Cir. 1991)).
IT IS SO ORDERED.
August 2, 2017
UNITED STATES MAGISTRATE JUDGE
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