Page v. Horel et al

Filing 20

MEMORANDUM AND ORDER by Judge Marilyn Hall Patel granting 12 respondent's Motion to Dismiss; denying 15 petitioner's Motion for Summary Judgment; denying 18 petitioner's Motion for case cite reading; (Attachments: # 1 CertServ) (awb, COURT STAFF) (Filed on 5/24/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JASON PAGE,

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United States District Court
For the Northern District of California

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No. C 09-4142 MHP (pr)

Petitioner,

ORDER OF DISMISSAL

v.

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MATTHEW CATE, Secretary of the
California Department of Corrections
12 & Rehabilitation,
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Respondent.
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INTRODUCTION
Jason Page, a pro se prisoner, has filed a petition for writ of habeas corpus challenging

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a 2007 disciplinary decision. Now before the court for consideration is respondent's motion

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to dismiss the petition as untimely. For the reasons discussed below, the court finds the

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petition to be barred by the statute of limitations and dismisses it.

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BACKGROUND

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Jason Page claimed in his federal habeas petition that his due process rights were

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violated during disciplinary proceedings that stemmed from an incident on May 17, 2007. In

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the rules violation report for the incident, Page was charged with battery on an inmate with a

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weapon. At a hearing on June 28, 2007, he was found guilty of the lesser offense of mutual

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combat with no serious injury and not guilty of battery with a deadly weapon. Petition, Exs.

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at 18. Page apparently was assessed a 90-day credit forfeiture. Id.

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Page appealed the disciplinary decision. A third-level (or director's level) decision
was issued on January 14, 2008, thus exhausting his prison administrative remedies.
Page filed three state petitions for collateral review before filing his federal petition

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for writ of habeas corpus.

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Page filed a petition for writ of habeas corpus ("state petition # 1") in the Del Norte

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County Superior Court on February 8, 2008 that was dated January 28, 2008. The petition

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was denied on March 26, 2008.

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Page filed a petition for writ of habeas corpus ("state petition # 2") in the California

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Court of Appeal on July 14, 2008. The petition was dated July 7, 2008. The petition was

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denied on July 22, 2008.

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Page filed a petition for writ of habeas corpus ("state petition # 3") in the California
Supreme Court on December 31, 2008. The proof of service for the petition states that it was

United States District Court
For the Northern District of California

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mailed to the court on December 14, 2008. The petition was denied by the California

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Supreme Court on February 11, 2009.

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Page then filed his federal petition. The petition is dated July 5, 2009, and has a proof

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of service attached to the petition which states that Page mailed it to this court on July 5,

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2009. The envelope in which it was mailed is postmarked August 27, 2009. The petition

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was stamped "filed" at the court on September 8, 2009.

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Due to Page's status as a prisoner proceeding pro se, he receives the benefit of the

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prisoner mailbox rule, which deems most documents filed when they are given to prison

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officials to mail to the court rather than the day the document reaches the courthouse.

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See Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003). For purposes of the present

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motion, each of his petitions is deemed filed as of the day he signed it, on the assumption that

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he gave each one to prison officials to mail on the day he signed it. For the two petitions that

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have proof of service of forms filled out, the court uses the proof of service date as the

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mailing date. For present purposes the court will accept that the federal petition is deemed to

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have been filed on July 5, 2009, but notes that it is highly unusual that there would be a 6-

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week delay between him putting it in the prison mail and the petition getting postmarked in

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the U.S. mail.

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DISCUSSION

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A petition for writ of habeas corpus filed by a state prisoner must comply with the

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statute of limitations in 28 U.S.C. § 2244(d). Section 2244's one-year limitations period

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applies to all habeas petitions filed by persons in “custody pursuant to the judgment of a

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State court,” even if the petition challenges an administrative decision rather than a state

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court judgment. Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004) (quoting 28 U.S.C.

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§ 2244(d)(1)). Although the limitations period has four possible starting dates,

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§ 2244(d)(1)(D) usually applies to prisoners challenging administrative decisions such as

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disciplinary decisions, i.e., the limitations period starts on the "date on which the factual

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For the Northern District of California

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predicate of the claim or claims presented could have been discovered through the exercise

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of due diligence." The one-year limitations period begins on the date the administrative

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decision becomes final. See Shelby, 391 F.3d at 1066 (limitations period began the day after

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prisoner received timely notice of the denial of his administrative appeal challenging

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disciplinary decision); see also Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003)

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(limitations period began when BPT denied prisoner's administrative appeal challenging the

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BPT's decision that he was unsuitable for parole). The "factual predicate" of the habeas

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claims is the finality of the adverse administrative decision, and not the denial of the state

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habeas petition. See Redd, 343 F.3d at 1082.

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The disciplinary decision became final on January 14, 2008, when Page's inmate

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appeal was denied at the director's level. The one-year limitations period started the next

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day. The presumptive deadline for Page to file his federal habeas petition therefore was

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January 15, 2009.

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The one-year limitations period is tolled for the "time during which a properly filed

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application for State post-conviction or other collateral review with respect to the pertinent

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judgment or claim is pending." 28 U.S.C. § 2244(d)(2). A state habeas petition is

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considered pending not only for the time the case is open on the docket in a court, but also

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for the time period between state habeas petitions provided that the petitioner files the later

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state habeas petition at a higher level court and does so “within what California would

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consider a ‘reasonable time.’” Evans v. Chavis, 546 U.S. 189, 197-98 (2006); Carey v.

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Saffold, 536 U.S. 214, 219-20 (2002).

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Page does not have enough statutory tolling to make his federal petition timely. By

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the time he filed state petition # 1, 23 days of his limitations period had passed. He receives

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no tolling for the 103 days between the denial of state petition # 1 and the filing of state

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petition # 2 because the latter was not filed within what California would consider a

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reasonable time. See, e.g., Evans, 546 U.S. at 197 (noting that six months is far longer than

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the 30 to 60 days that most states provide for filing an appeal, the Court held that an

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For the Northern District of California

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unjustified or unexplained 6-month delay between post-conviction applications in California

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is not “reasonable” and does not fall within Carey’s definition of the term “pending”);

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Velasquez v. Kirkland, No. 08-55823, slip op. 6223, 6231 (9th Cir. May 10, 2011) (no

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statutory tolling for the unexplained 91-day and 81-day gaps between state habeas petitions

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for represented petitioner); Banjo v. Ayers, 614 F.3d 964, 970 (9th Cir. 2010) (delay of 146

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days between successive petitions not reasonable, so later petition not “timely filed”);

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Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (no tolling for 101-day and 115-day

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gaps between state habeas petitions where those petitions offered no justification for the

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delays as required under California law); Waldrip v. Hall, 548 F.3d 729, 735-36 (9th Cir.

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2008) (delay of at least eight months not “reasonable” and thus not subject to tolling); Gaston

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v. Palmer, 447 F.3d 1165, 1167 (9th Cir. 2006) (no “gap tolling” during delays of 10, 15 and

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18 months between California habeas petitions). Page also receives no tolling for the 145

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days between the denial of state petition # 2 and the filing of state petition # 3 because the

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unexplained delay was "far longer than the Supreme Court's thirty-to-sixty-day benchmark

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for California's 'reasonable time' requirement." Velasquez, slip op. at 6231. By the time

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Page finished in state court, 271 days of the one-year limitations period had passed (i.e., 23

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days before state petition # 1 was filed, plus 103 days and 145 days for the gaps between

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later petitions) and he had only 94 days remaining in his one-year limitations period.

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Page did not file his federal petition until 144 days after his last state court petition

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was denied. He therefore missed the § 2244(d) deadline by more than seven weeks (144

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days minus 94 days = 50 days or 7+ weeks). Unless he is entitled to enough equitable tolling

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to bridge that gap, his federal petition is untimely.

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The § 2244(d) limitations period can be equitably tolled for a petitioner who shows

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(1) that he pursued his rights with reasonable diligence and (2) that some extraordinary

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circumstance stood in his way and prevented timely filing. See Holland v. Florida, 130 S. Ct.

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2549, 2562 (2010).

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Page contends that he had been "in and out of the prison AD.SEG. units several times

United States District Court
For the Northern District of California

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in the last TWO YEARS and have to wait for property issue and Law Library access."

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Docket # 15, p. 2. “[O]rdinary prison limitations on . . . access to the law library and copier”

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do not amount to extraordinary circumstances or make it impossible to file on time. Ramirez

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v. Yates, 571 F.3d 993, 998 (9th Cir. 2009); see, e.g., Chaffer, 592 F.3d at 1049 (prisoner’s

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pro se status, law library missing a “handful” of reporter volumes, and reliance on inmate

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helpers who were transferred or too busy to attend to his petitions are not extraordinary

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circumstances “given the vicissitudes of prison life”). The court finds Page's several

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arguments in favor of equitable tolling to be unpersuasive. The arguments are vague and

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devoid of any factual support. Page has not identified the particular dates on which he was in

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ad-seg, and has not identified when or for how much time he had to "wait" for property issue

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and law library access. He does not allege a complete denial of his legal paperwork or of law

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library access. The reasons he proffers appear nothing more than routine prison occurrences

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that did not amount to extraordinary circumstances or make it impossible for him to file on

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time. As Page's movement history shows, Page was able to file his state petition # 1 quite

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quickly (i.e., within 23 days of the final denial of the inmate appeal) from the confines of an

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ad-seg unit. See Resp. Reply, Ex. 8. The timing of his federal petition also shows that the

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excuses he proffers don't explain his delay: (a) of the 144 days that passed between the denial

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of state petition # 3 and the filing of the federal petition, the first 126 days were spent in the

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"main" or general population, rather than ad-seg; and (b) his federal petition was filed just 17

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days after his mid-June 2009 transfer to two different prisons, thus undermining the idea that

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his materials were slow to catch up with him when he was moved "in and out" of ad seg or to

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new facilities. The restrictions he has described do not appear to have been anything more

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than the routine circumstances that face most habeas petitioners, almost all of whom are in

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prison with limited law library access, occasional disruptions of property possession, and

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proceeding without the assistance of counsel. These are not extraordinary circumstances that

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stood in the way of a timely filing. Considering Page's excuses singly or in combination does

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not lead one to conclude that he was pursuing his rights diligently and that some

United States District Court
For the Northern District of California

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extraordinary circumstance stood in the way of timely filing of the federal petition.
The federal petition was not filed until more than seven weeks after the statute of

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limitations deadline had passed. The petition is barred by the habeas statute of limitations.

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A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a

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case in which "jurists of reason would find it debatable whether the petition states a valid

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claim of the denial of a constitutional right and that jurists of reason would find it debatable

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whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S.

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473, 484 (2000).

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CONCLUSION
Respondent’s motion to dismiss is GRANTED. (Docket # 12.) The petition for writ

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of habeas corpus is dismissed because it was not filed before the expiration of the limitations

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period in 28 U.S.C. § 2244(d)(1). Having determined that the petition is untimely, the court

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DENIES petitioner's motion for summary judgment and his "motion for case cite reading by

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judge before hearing, documentary evidence/witness(s) exhibits attached" – both of which

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pertain to the merits of the petition. (Docket # 15, # 18.) The clerk will close the file.

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IT IS SO ORDERED.
DATED: May 23, 2011
Marilyn Hall Patel
United States District Judge

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