Abedi v. Unknown

Filing 20

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 9/6/11 RECOMMENDING that 18 MOTION to DISMISS be granted and this action be closed; referred to Judge John A. Mendez; Objections to F&R due within 21 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MOHAMMAD ABEDI,

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Petitioner,

No. CIV S-10-3184 JAM DAD P

vs.
GROUNDS, Warden,
Respondent.

FINDINGS AND RECOMMENDATIONS
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Petitioner, a state prisoner proceeding pro se, has filed an amended petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 24, 2011, respondent filed the

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pending motion to dismiss, arguing that the amended petition should be dismissed because the

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claims set forth therein are procedurally barred. Petitioner has filed an opposition to the motion.

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THE PETITION

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On November 20, 2010, petitioner commenced this action by filing a petition for

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writ of habeas corpus. On January 9, 2011, he filed an amended petition. In his amended

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petition, petitioner challenges a prison rules violation report (“RVR”) he received in 2005 for

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engaging in mutual combat. Petitioner claims, inter alia, that there was no reliable evidence to

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support the finding of prison officials that he was guilty of that prison disciplinary violation. In

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terms of relief, petitioner seeks dismissal of the RVR. (Am. Pet. at 5-6 & 8.)
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RESPONDENT’S MOTION TO DISMISS
I. Respondent’s Motion

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Respondent moves to dismiss the pending petition, arguing that the claims set

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forth therein are procedurally barred. Specifically, respondent argues that petitioner presented his

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claim that his disciplinary conviction was unsupported by “some evidence” to the California

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Supreme Court, but that court denied his petition as untimely and cited the decision in In re

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Robbins, 18 Cal. 4th 770, 780 (1998). Because the California Supreme Court denied the petition

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pursuant to an independent and adequate state law ground, respondent contends that this court

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must dismiss the pending petition. (Resp’t’s Mot. to Dismiss at 5.)

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II. Petitioner’s Opposition

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In opposition to respondent’s motion to dismiss, petitioner argues only that federal

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courts must review the record to determine whether the state court clearly erred in its application

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of United States Supreme Court law. (Petn’r’s Opp’n to Resp’t’s Mot. to Dismiss at 2-3.)

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ANALYSIS

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“A federal habeas court will not review a claim rejected by a state court ‘if the

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decision of [the state] court rests on a state law ground that is independent of the federal question

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and adequate to support the judgment.’” Walker v. Martin, __ U.S. __, 131 S. Ct. 1120, 1127

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(2011) (quoting Beard v. Kindler, 558 U.S. ___, ___, 130 S. Ct. 612, 615 (2009)). See also

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Coleman v. Thompson, 501 U.S. 722, 729 (1991). California’s time limitation requiring the

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filing of petitions seeking habeas relief without “substantial delay” has now been found by the

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U.S. Supreme Court to be an “independent” and “adequate” state law ground for purposes of the

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procedural default rule. Walker, 131 S. Ct. at 1128-30.1 See also Alvarez v. Wong, No. 09-

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In Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003) the court held that California’s
untimeliness rule was an independent procedural ground for disposing of a habeas claim under the
procedural default rule but remanded the matter for a determination as to the adequacy of the
untimeliness rule to support procedural default in that case.
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15547, 2011 WL 1252307 (9th Cir. Apr. 5, 2011)2 (“[t]he Supreme Court recently held that

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denial of habeas relief by the California Supreme Court on the ground that the application for

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relief was filed untimely was an independent an adequate state procedural ground requiring

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denial of a subsequent habeas petition in federal court . . . .”); Lee v. Almager, No. CV 08-3248-

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PA(E), 2011 WL 2882148 at *7-8 (C.D. Cal. June 7, 2011) (finding federal habeas corpus claim

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procedurally barred because the California Supreme Court had denied it with a citation to In re

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Robbins; “[t]he Walker Court rejected all arguments that California’s timeliness rule was not

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firmly established and regularly followed”); Johnson v. Cullen, No. 3-98-cv-4043-SI, 2011 WL

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2149313 (N.D. Cal. June 1, 2011) (finding the Walker holding directly applicable and striking all

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claims found to be untimely by California Supreme Court); Taylor v. McDonald, Civil No. 10-

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cv-0177 MMA(BGS), 2011 WL 3021838 at *8-9 (S.D. Cal. Mar. 7, 2011) (finding federal

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habeas corpus claims procedurally barred because “[t]he Supreme Court held California’s

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untimeliness rule is ‘adequate’ for procedural default purposes when the petitioner subsequently

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presents for federal habeas relief the same claims that were rejected on untimeliness grounds in

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state court.”).

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Here, the California Supreme Court denied petitioner’s application for writ of

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habeas corpus, citing the decision in In re Robbins, 18 Cal 4th at 880. (Am. Pet. Attach. at 12.)

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Petitioner has not alleged any facts to cast doubt on the adequacy or application of California’s

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habeas time limitation rule in 2009. See Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003);

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Lee v. Almager, No. CV 08-3248-PA(E), 2011 WL 2882148 at *7 (C.D. Cal. June 7, 2011)

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(even assuming arguendo that the Bennett burden shifting scheme applies after the decision in

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Walker, petitioner had not met his interim burden of demonstrating the inadequacy of the

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California timeliness bar). Petitioner also failed to assert that the California Supreme Court

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exercised its discretion in a “surprising or unfair” manner or in a way that “discriminates against

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Citation to this unpublished decision is appropriate pursuant to Ninth Circuit Rule 36-3(b).
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claims of federal rights” when it denied his state petition as untimely. See Walker, 131 S. Ct. at

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1131. Finally, although petitioner can overcome a procedural default by demonstrating cause for

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the default or actual prejudice, he has asserted no such arguments in this case. Nor has petitioner

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demonstrated that this court’s failure to consider his habeas claims will result in a fundamental

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miscarriage of justice. See Bennett, 322 F.3d at 580. Accordingly, the court concludes that

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federal habeas review of petitioner’s claims is procedurally barred.3

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CONCLUSION

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Respondent’s motion to dismiss (Doc. No. 18) be granted; and

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2. This action be closed.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-

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one days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within seven days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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In any objections he elects to file, petitioner may address whether a certificate of

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appealability should issue in the event he files an appeal of the judgment in this case. See Rule

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11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a

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certificate of appealability when it enters a final order adverse to the applicant); Hayward v.

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Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate of

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The parties have also briefed the issues of whether the pending federal petition is timely
and whether it states a cognizable claim for federal habeas corpus relief. In light of the
recommendation set forth above, the court will not reach the merits of those arguments.
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appealability to review the denial of a habeas petition challenging an administrative decision

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such as the denial of parole by the Board), abrogated on other grounds in Swarthout v. Cooke,

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562 U.S. ___ , 131 S. Ct. 859 (2011).

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DATED: September 6, 2011.

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DAD:9
abed3184.157

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