Peralta v. Sandor

Filing 17

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/9/2014 RECOMMENDING that respondent's 14 motion to dismiss the petition be granted; and this case be closed. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

CION ADONIS PERALTA,

11

Petitioner,

12
13

v.

No. 2:12-cv-2571 MCE CKD P

FINDINGS AND RECOMMENDATIONS

GARY S. SANDOR,

14

Respondent.

15
Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for

16
17

writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that a 2010 disciplinary

18

conviction violated his due process rights. (ECF No. 1.) Before the court is respondent’s March

19

29, 2013 motion to dismiss the petition on the grounds that it is untimely and contains claims not

20

cognizable in federal habeas. (ECF No. 14.) Petitioner has filed an opposition to the motion

21

(ECF No. 15), and respondent has filed a reply (ECF No. 16). For the reasons set forth below,

22

the court will recommend that respondent’s motion be granted.
ANALYSIS

23
24

I. Facts
On May 8, 2010, following a disciplinary hearing at Mule Creek State Prison, petitioner

25
26

was found guilty of possession of inmate-manufactured alcohol in violation of California Code of

27

/////

28

/////
1

1

Regulations tit. 15, § 3016(a). (ECF No. 14, Ex. 1 at 26-27.1) Petitioner filed an administrative

2

appeal of the conviction on due process grounds, Log No. MCSP-10-00804, which was denied at

3

the third and final level of administrative review on November 18, 2010. See Cal. Code Regs. tit.

4

15, §§ 3084.1, 3084.7 (inmate administrative appeal process). (ECF No. 14, Ex. 1 at 20-21.)

5

On May 7, 2011, petitioner filed a petition in the Amador County Superior Court

6

challenging the disciplinary conviction. (ECF No. 14, Ex. 1.) The petition was denied June 15,

7

2011. (Id., Ex. 2.) Petitioner subsequently filed petitions in the state appellate court and

8

California Supreme Court, the latter of which was denied on December 14, 2011. (Id., Exs. 3-4.)

9
10

On October 15, 2012, petitioner filed the instant federal petition. (ECF No. 1.)
II. Statute of Limitations Under the AEDPA

11

Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and

12

Effective Death Penalty Act of 1996 (“AEDPA”) are applicable. See Lindh v.Murphy, 521 U.S.

13

320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The AEDPA imposed a

14

one-year statute of limitations on the filing of federal habeas petitions. Title 28 U.S.C. § 2244

15

provides as follows:

16

(d)(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 –

17
18

(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;

19
20

(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;

21
22
23

(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

24
25

(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise
of due diligence.

26
27
28

1

Citations refer to page numbers assigned by the court’s docketing system.
2

1
2

(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.

3
4

The AEDPA statute of limitations is tolled during the time a properly filed application for

5

post-conviction relief is pending in state court. 28 U.S.C. § 2244(d)(2). The statute of limitations

6

is not tolled during the interval between the date on which a decision becomes final and the date

7

on which the petitioner files his first state collateral challenge. Nino v. Galaza, 183 F.3d 1003,

8

1006 (9th Cir. 1999). Once state collateral proceedings are commenced, a state habeas petition is

9

“pending” during a full round of review in the state courts, including the time between a lower

10

court decision and the filing of a new petition in a higher court, as long as the intervals between

11

petitions are “reasonable.” See Evans v. Chavis, 546 U.S. 189, 192 (2006); Carey v. Saffold, 536

12

U.S. 214, 222-24 (2002).

13

III. Discussion

14

Where, as here, habeas petitioners challenge administrative decisions, AEDPA’s one-year

15

limitations period commences on “the date on which the factual predicate of the claim or claims

16

presented could have been discovered through the exercise of due diligence.” 28 U.S.C.A.

17

§2244(d)(1)(D). “As a general rule, the state agency’s denial of an administrative appeal is the

18

‘factual predicate’ for such habeas claims.” Mardesich v. Cate, 668 F.3d 1164, 1172 (9th Cir.

19

2012), citing Redd v. McGrath, 343 F.3d 1077, 1085 (9th Cir. 2003). As petitioner’s third-level

20

administrative appeal was denied on November 18, 2010, the limitations period began on

21

November 19, 2010 and, absent statutory tolling, expired on November 19, 2011.

22

After the AEDPA clock began running on November 19, 2010, 169 days passed before

23

petitioner filed a petition challenging the administrative decision in the Amador Superior Court.

24

Title 28 U.S.C. §2244(d)(2) states that the “time during which a properly filed application for

25

State post-conviction or other collateral review with respect to the pertinent judgment or claim is

26

pending shall not be counted toward” the one-year limitation period. 28 U.S.C. § 2244(d)(2).

27

Respondent concedes that the limitations period was tolled during the pendency of petitioner’s

28

three state habeas petitions, specifically between May 7, 2011 and December 14, 2011.
3

1

In opposition to the motion, petitioner argues that the petition was timely because it was

2

filed within one year of the California Supreme Court’s denial of his petition on December 14,

3

2011. As this calculation does not account for the 169 days of the limitations period that ran

4

before he filed his first state petition for post-conviction review, it is incorrect. Rather, petitioner

5

had until June 28, 2012 to file a timely federal petition, but did not commence this action until

6

October 15, 2012.

7

The limitations period is subject to equitable tolling if the petitioner demonstrates: “(1)

8

that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood

9

in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Petitioner bears the burden of

10

alleging facts that would give rise to tolling. Id. at 418; Smith v. Duncan, 297 F.3d 809 (9th Cir.

11

2002). Petitioner asserts that he is entitled to equitable tolling, but fails to allege any facts

12

suggesting that the high bar for equitable tolling of the AEDPA tolling was met here.

13
14

Thus the undersigned will recommend that the petition be dismissed for untimeliness and
need not reach respondent’s alternative argument that the petition fails to state a cognizable claim.

15

Accordingly, IT IS HEREBY RECOMMENDED THAT:

16

1. Respondent’s motion to dismiss the petition (ECF No. 14) be granted; and

17

2. This case be closed.

18

These findings and recommendations are submitted to the United States District Judge

19

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

20

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

21

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

22

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

23

objections shall be served and filed within fourteen days after service of the objections. The

24

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

25

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

26

Dated: January 9, 2014

27
28

2 / pera2571.mtd

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
4