Davis v. Grounds

Filing 9

ORDER GRANTING MOTION TO DISMISS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Thelton E. Henderson on 03/07/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 3/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL WAYNE DAVIS,

No. C-12-0033 TEH (PR)

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Petitioner,

ORDER GRANTING MOTION TO
DISMISS; DENYING
CERTIFICATE OF
APPEALABILITY

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v.

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RANDY GROUND, Warden,

(Doc. #5)

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Respondent.
___________________________/

Petitioner, a state prisoner incarcerated at Soledad

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For the Northern District of California

United States District Court

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State Prison in Soledad, California, has filed a pro se Petition

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for a Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging a

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2010 decision by the California Board of Parole Hearings

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(“Board”) which determined that Petitioner was unsuitable for

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parole.

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untimely under 28 U.S.C. § 2244(d) and for failure to exhaust

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state remedies.

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not filed a reply.

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motion to dismiss is GRANTED.

Respondent has filed a motion to dismiss the petition as

Petitioner filed an opposition.

Respondent has

For the reasons stated below, Respondent’s

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On February 17, 1988, Petitioner was sentenced in Los

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Angeles County Superior Court to fifteen years to life plus one

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year for a weapon enhancement following his guilty plea to second

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degree murder.

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Petitioner unsuitable for parole, and deferred his next parole

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Doc. #1 at 2.

On March 29, 2010, the Board found

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hearing for five years pursuant to Proposition 9.1

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On November 15, 2010, Petitioner filed a petition for a writ of

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habeas corpus challenging the Board’s decision in Los Angeles

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County Superior Court.

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denied the petition.

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Doc. #1 at 8.

On January 21, 2011, the superior court

On September 8, 2011, Petitioner filed a petition for a

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writ of habeas corpus in the state Court of Appeal alleging the

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following two claims: (1) the Board violated his due process

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rights under the California Constitution by finding him
unsuitable for parole absent some evidence of current

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For the Northern District of California

United States District Court

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dangerousness; and (2) the Board’s application of Proposition 9

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violated his rights under Ex Post Facto clauses of the California

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and United States constitutions.

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Court of Appeal denied review.

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On September 21, 2011, the

On September 25, 2011, Petitioner filed a petition for

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review in the California Supreme Court alleging the Ex Post Facto

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claim.

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the petition for review.

On November 2, 2011, the California Supreme Court denied

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On December 19, 2011,2 Petitioner filed the instant

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federal Petition for a Writ of Habeas Corpus asserting the Ex

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Post Facto claim.

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Proposition 9, also known as “Marsy’s Law,” significantly
amended the law governing the availability and frequency of parole
hearings. Gilman v. Schwarzenegger, 638 F.3d 1101, 1104 (9th Cir.
2011).
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Pursuant to the mailbox rule, the Court deems Petitioner’s
habeas petitions filed on the date he signed them and provided them
to prison officials for mailing as shown on the proofs of service.
Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003).
Therefore, although the Court’s docket indicates that the federal
petition was filed on January 4, 2012, under the mailbox rule, it
was filed on December 19, 2011.
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II

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The Antiterrorism and Effective Death Penalty Act of

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1996 (“AEDPA”) became law on April 24, 1996, and imposed for the

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first time a statute of limitations on petitions for a writ of

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habeas corpus filed by state prisoners.

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prisoners challenging non-capital state convictions or sentences

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must be filed within one year of the latest of the date on which:

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(A) the judgment became final after the conclusion of direct
review or the time passed for seeking direct review;

Petitions filed by

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(B) an impediment to filing an application created by
unconstitutional state action was removed, if such action
prevented petitioner from filing;

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For the Northern District of California

United States District Court

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(C) the
Supreme
Supreme
review;

constitutional right asserted was recognized by the
Court, if the right was newly recognized by the
Court and made retroactive to cases on collateral
or

(D) the factual predicate of the claim could have been
discovered through the exercise of due diligence.

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28 U.S.C. § 2244(d)(1).

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Section 2244’s one-year limitations period applies to

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all habeas petitions filed by persons in “custody pursuant to the

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judgment of a State court,” even if the petition challenges a

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pertinent administrative decision rather than a state court

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judgment.

Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir.

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2004) (quoting 28 U.S.C. § 2244(d)(1)).

For prisoners

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challenging administrative decisions such as the revocation of

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good time credits or the denial of parole, section 2244(d)(1)(D)

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applies.

Id. at 1066.

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Under section 2244(d)(1)(D), the one-year limitations

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period starts on the date upon which “the factual predicate of

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the claim or claims presented could have been discovered through

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the exercise of due diligence.”

The time begins “when the
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prisoner knows (or through diligence could discover) the

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important facts, not when the prisoner recognizes their legal

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significance.”

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Cir. 2000) (internal quotation marks omitted); see Redd v.

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McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003) (limitations period

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began to run when the Board denied prisoner’s administrative

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appeal challenging denial of parole).

Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th

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III

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A
The parties first dispute the commencement date of

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For the Northern District of California

United States District Court

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AEDPA’s one-year limitations period.

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limitations period began to run on the date the Board’s initial

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decision became final, which he defines as 150 days after the

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Board issued its initial decision.

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counters that the one-year limitations period began on March 29,

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2010, the date of the Board’s initial decision, because

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Petitioner was present at the hearing and thus was aware of the

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factual predicate of his claim.

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concludes that neither party is correct.

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Petitioner argues that the

Doc. #8 at 4.

Doc. #5 at 2.

Respondent

The Court

In Redd v. McGrath, the Ninth Circuit held that, for

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the purposes of § 2244(d)(1)(D), a petitioner learns of the

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factual predicate of his claim on the date the Board’s decision

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became final, which is the date that the decision is no longer

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subject to further administrative review by the Board.

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F.3d at 1082-83, 1085.

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petitioner could have learned of the factual predicate of his

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claim through the exercise of due diligence when the Board denied

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his administrative appeal.

Redd, 343

The Redd court concluded that the

Id. at 1082-84.
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In 2003, when Redd was decided, California prisoners

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could challenge the Board’s adverse parole decision by seeking an

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administrative appeal from a final decision of the Board.

Van

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Houten v. Davison, 2009 WL 811596, at *5 (C.D. Cal 2009).

In

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2004, however, the California Legislature abandoned the

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administrative grievance procedure.

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initial decision is considered a “proposed decision” that is

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subject to internal administrative review by the Board’s chief

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counsel or a designee for a 120-day period following the hearing.

Id.

Currently, a Board’s

Cal. Code Regs. tit. 15, §§ 2041(a), (h); 2043.

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For the Northern District of California

United States District Court

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of any intervening change or modification by the Board’s chief

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counsel or designee, the proposed decision becomes final on the

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120th day following the date of the hearing decision.

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In the absence

Id.

Consequently, because the 120-day provision in the

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California Code of Regulations replaced the Board’s

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administrative appeal process in effect at the time of Redd, the

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Board’s decision now becomes final 120 days after the date it

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issues its initial decision.

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the factual predicate of his claim on July 27, 2010, 120 days

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after the Board issued its initial decision.

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Hartley, 2010 WL 2556832 at *15 (E.D. Cal. 2010) (summarizing

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many cases holding that Board’s decision becomes final 120 days

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after Board issues its initial decision).

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although the Board denied Petitioner’s parole on March 29, 2010,

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the parole decision itself stated that it would not be final

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until July 27, 2010, which is 120 days after Petitioner’s

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hearing.

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became final on July 27, 2010, and the limitations period for

Thus, Petitioner became aware of

Doc. #1 at Exh. 1, page 28.

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See Riley v.

Significantly,

Thus, the Board’s decision

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Petitioner’s claim began to run the next day, July 28, 2010. See

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Shelby, 391 F.3d at 1066 (statute of limitation begins to run the

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day after Board’s decision becomes final).

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Petitioner relies on a December 12, 2007 magistrate

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judge’s order in Van Houten, CV 07-5256-AG (AN), to argue that he

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is entitled to thirty extra days for gubernatorial review before

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the statute of limitations commenced.

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thirty-day period to reverse or modify a parole decision after

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the Board’s decision becomes final.

The governor is granted a

Cal. Penal Code § 3041.2(a);

Van Houten, 2009 WL 811596, at *8; see also Mayberry v. Hartley,

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For the Northern District of California

United States District Court

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2010 WL 2902507, at *2 (E.D. Cal. 2010).

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Petitioner’s argument, however, is inconsistent with

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the holding in Redd and the statutory language.

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above, under Redd, the date Petitioner became aware of the

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factual predicate of his claim is the date that the Board’s

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decision is no longer subject to the Board’s administrative

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review.

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underlying factual predicate giving rise to Petitioner’s claim.

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Van Houten, 2009 WL 811596 at *8; see also Mayberry, 2010 WL

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2902507 at *2.

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magistrate judge’s order is misplaced.

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order has been superseded by the later district court decision

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holding that the extra thirty days for gubernatorial review are

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unrelated to the administrative finality of the Board’s decision.

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See Van Houten, 2009 WL 811596 at *8.

As discussed

The governor’s discretionary review does not change the

Petitioner’s reliance on the Van Houten
The magistrate judge’s

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Thus, the one-year limitations period for Petitioner’s

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federal petition began to run on July 28, 2010, the day after the

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Board’s decision became final and the federal petition was due on

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July 27, 2011.

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(9th Cir. 2001) (adopting “anniversary method;” absent tolling,

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the expiration date of the limitation period will be the same

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date as the triggering event but in the following year).

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Petitioner did not provide his instant petition to prison

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officials for mailing until December 19, 2011.

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petition is time-barred unless Petitioner is entitled to

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statutory or equitable tolling.

See Patterson v. Stewart, 251 F.3d 1243, 1246

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Therefore, the

B
AEDPA’s one-year limitations period may be tolled for

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For the Northern District of California

United States District Court

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“[t]he time during which a properly filed application for State

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post-conviction or other collateral review with respect to the

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pertinent judgment or claim is pending.”

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An application is “pending” until it has achieved final

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resolution through the state’s post conviction procedures.

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v. Saffold, 536 U.S. 214, 220 (2002).

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28 U.S.C. § 2244(d)(2).

Carey

The parties dispute the time during which the petition

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was “pending.”

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statutory tolling for the 230 days between the date the state

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superior court denied his petition and the date he filed his

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petition in the Court of Appeal.

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days constituted an unjustified, unexplained and unreasonable

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delay and, therefore, Petitioner is not entitled to tolling for

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this time period.

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agrees with Respondent.

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Petitioner contends that he is entitled to

Respondent argues that the 230

For the reasons discussed below, the Court

A state petition is “pending” only if it is filed

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within a “reasonable time.”

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Chavis, 546 U.S. 189, 192 (2006).

Carey, 536 U.S. at 221; Evans v.

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To determine whether a

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petition was “pending,” a federal court must determine whether a

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petitioner “delayed ‘unreasonably’ in seeking [higher state

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court] review.”

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a lower court decision and a filing of a new petition in a higher

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court is treated as time the petition is “pending” as long as the

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petitioner did not “unreasonably delay” in seeking review.

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at 221-23; accord Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.

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1999).

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Carey, 536 U.S. at 225.

Thus, the time between

Id.

The Supreme Court has stated that the reasonableness
standard in California should be interpreted under the assumption

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For the Northern District of California

United States District Court

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that it “does not lead to filing delays substantially longer than

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those in States with determinate timeliness rules.”

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U.S. at 200.

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days, the time that most States provide for filing an appeal.

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Id. at 200 (quoting Carey, 536 U.S. at 219).

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Evans, 546

The benchmark set forth in Evans is thirty to sixty

In Evans, the Court held that an unexplained six-month

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delay between post-conviction applications in California is not

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“reasonable” and therefore does not fall within the meaning of

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“pending” under Carey.

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the Ninth Circuit has held that delays substantially longer than

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the “thirty to sixty day” benchmark were unreasonable.

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Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011)

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(concluding that delays of ninety-one and eighty-one days between

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state habeas petitions was unreasonable); Chaffer v. Prosper, 592

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F.3d 1046, 1048 (9th Cir. 2010) (finding delays of 115 and 101

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days between California habeas petitions unreasonable); Livermore

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v. Sandor, 487 Fed. Appx. 342, 243-44 (9th Cir. 2012)

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(unpublished memorandum disposition) (delay of seventy-six days

Evans, 546 U.S. at 201.

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Following Evans,

See e.g.,

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between state habeas petitions is unreasonable).
Here, Petitioner’s unexplained delay of 230 days is

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substantially longer than the thirty to sixty day bench mark set

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forth in Evans.

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sixty days is normally allotted, is not reasonable.

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reliance on Espinoza v. Schwarzenegger, 2010 WL 231380, at *2-3

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(E.D. Cal. 2010), which concluded that five-month and eight-month

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delays between state court petitions were reasonable, is called

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into question by the later Ninth Circuit decisions Velasquez and

A delay of 230 days, when only thirty or at most
Petitioner’s

Chaffer, which found delays of 172 days and 216 days to be

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For the Northern District of California

United States District Court

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unreasonable.

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between state court filings substantially exceeds the Evans

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benchmark of thirty to sixty days and also exceeds the delays the

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Ninth Circuit has found to be unreasonable, he is not entitled to

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statutory tolling for this time period.

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Because Petitioner’s unexplained 230-day delay

The time intervals between Petitioner’s state habeas

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petitions are as follows.

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year limitations period began to run, and November 15, 2010, the

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date Petitioner filed his state habeas petition in the superior

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court, 110 days passed.

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petition was pending in the superior court.

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2011, the date the superior court denied Petitioner’s petition,

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and September 8, 2011, the date Petitioner filed his state habeas

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petition in the California Court of Appeal, 230 days expired.

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Thirteen days were tolled while the petition was pending in the

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Court of Appeal.

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of Appeal denied the petition and September 25, 2011, the date

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Petitioner filed his petition in the California Supreme Court,

Between July 28, 2010, when the one-

Sixty-seven days were tolled while the
Between January 21,

Between September 21, 2011, the date the Court

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four days were tolled.

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petition was pending in the California Supreme Court.

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between November 2, 2011, the date the California Supreme Court

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denied the petition, and December 19, 2011, the date Petitioner

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filed the instant petition, forty-seven days of the limitations

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period expired.

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Thirty-eight days were tolled while the
Finally,

In sum, a total of 509 days elapsed between the

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commencement of the limitations period and the filing of the

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federal petition.

During this period, 122 days were tolled.

After deducting 122 tolled days, the petition was filed 387 days

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For the Northern District of California

United States District Court

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after the one-year statute of limitations commenced, or twenty-

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two days too late.

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Petitioner is entitled to equitable tolling.

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Thus, the petition is untimely, unless

C

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The AEDPA one-year limitations period may be subject to

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equitable tolling in limited circumstances.

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Florida, 130 S. Ct. 2549, 2560 (2010).

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applicable only "if extraordinary circumstances beyond a

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prisoner's control make it impossible to file a petition on

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time."

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(quoting Beeler, 128 F.3d 1283, 1288 (9th Cir. 1997)).

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qualify for equitable tolling, a petitioner must show (1) that he

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has been pursuing his rights diligently, and (2) that some

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extraordinary circumstance stood in his way and prevented timely

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filing.

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show that the extraordinary circumstance were the cause of his

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untimeliness.

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2010).

See Holland v.

Equitable tolling is

Roy v. Lampert, 455 F.3d 945, 950 (9th Cir. 2006)

Holland, 130 S. Ct. at 2560.

To

The petitioner must also

Porter v. Ollison, 620 F.3d 952, 959 (9th Cir.

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Petitioner is not entitled to equitable tolling because

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he does not present any grounds, nor are any apparent in the

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record, for such tolling.

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dismiss the petition as untimely must be granted.

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Accordingly, Respondent's motion to

Because the petition is untimely, the Court need not

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address Respondent's alternate argument that Petitioner failed to

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exhaust his Ex Post Facto claim in the state courts.

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IV
For the foregoing reasons, Respondent’s motion to
dismiss the petition is GRANTED.

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For the Northern District of California

United States District Court

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certificate of appealability will not issue because Petitioner

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has not made “a substantial showing of the denial of a

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constitutional right.”

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not shown that “jurists of reason would find it debatable whether

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the petition states a valid claim of the denial of a

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constitutional right, and that jurists of reason would find it

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debatable whether the district court was correct in its

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procedural ruling.”

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Doc. #5.

Further, a

28 U.S.C. § 2253(c)(2).

Petitioner has

Slack v. McDaniel, 529 U.S. 473, 478 (2000).

The Clerk is directed to terminate any pending motions

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as moot and close the file.

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IT IS SO ORDERED.

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DATED: 03/07/2013
THELTON E. HENDERSON
United States District Judge

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