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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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 MICHAEL WAYNE DAVIS, No. C-12-0033 TEH (PR) 5 Petitioner, ORDER GRANTING MOTION TO DISMISS; DENYING CERTIFICATE OF APPEALABILITY 6 v. 7 RANDY GROUND, Warden, (Doc. #5) 8 9 Respondent. ___________________________/ Petitioner, a state prisoner incarcerated at Soledad 11 For the Northern District of California United States District Court 10 12 State Prison in Soledad, California, has filed a pro se Petition 13 for a Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging a 14 2010 decision by the California Board of Parole Hearings 15 (“Board”) which determined that Petitioner was unsuitable for 16 parole. 17 untimely under 28 U.S.C. § 2244(d) and for failure to exhaust 18 state remedies. 19 not filed a reply. 20 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 I 21 22 On February 17, 1988, Petitioner was sentenced in Los 23 Angeles County Superior Court to fifteen years to life plus one 24 year for a weapon enhancement following his guilty plea to second 25 degree murder. 26 Petitioner unsuitable for parole, and deferred his next parole 27 28 Doc. #1 at 2. On March 29, 2010, the Board found 1 hearing for five years pursuant to Proposition 9.1 2 On November 15, 2010, Petitioner filed a petition for a writ of 3 habeas corpus challenging the Board’s decision in Los Angeles 4 County Superior Court. 5 denied the petition. 6 Doc. #1 at 8. On January 21, 2011, the superior court On September 8, 2011, Petitioner filed a petition for a 7 writ of habeas corpus in the state Court of Appeal alleging the 8 following two claims: (1) the Board violated his due process 9 rights under the California Constitution by finding him unsuitable for parole absent some evidence of current 11 For the Northern District of California United States District Court 10 dangerousness; and (2) the Board’s application of Proposition 9 12 violated his rights under Ex Post Facto clauses of the California 13 and United States constitutions. 14 Court of Appeal denied review. 15 On September 21, 2011, the On September 25, 2011, Petitioner filed a petition for 16 review in the California Supreme Court alleging the Ex Post Facto 17 claim. 18 the petition for review. On November 2, 2011, the California Supreme Court denied 19 On December 19, 2011,2 Petitioner filed the instant 20 federal Petition for a Writ of Habeas Corpus asserting the Ex 21 Post Facto claim. 22 23 24 25 26 27 28 1 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). 2 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. 2 1 II 2 The Antiterrorism and Effective Death Penalty Act of 3 1996 (“AEDPA”) became law on April 24, 1996, and imposed for the 4 first time a statute of limitations on petitions for a writ of 5 habeas corpus filed by state prisoners. 6 prisoners challenging non-capital state convictions or sentences 7 must be filed within one year of the latest of the date on which: 8 (A) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; Petitions filed by 9 (B) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; 11 For the Northern District of California United States District Court 10 12 13 14 (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. 15 28 U.S.C. § 2244(d)(1). 16 Section 2244’s one-year limitations period applies to 17 all habeas petitions filed by persons in “custody pursuant to the 18 judgment of a State court,” even if the petition challenges a 19 pertinent administrative decision rather than a state court 20 judgment. Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 21 2004) (quoting 28 U.S.C. § 2244(d)(1)). For prisoners 22 challenging administrative decisions such as the revocation of 23 good time credits or the denial of parole, section 2244(d)(1)(D) 24 applies. Id. at 1066. 25 Under section 2244(d)(1)(D), the one-year limitations 26 period starts on the date upon which “the factual predicate of 27 the claim or claims presented could have been discovered through 28 the exercise of due diligence.” The time begins “when the 3 1 prisoner knows (or through diligence could discover) the 2 important facts, not when the prisoner recognizes their legal 3 significance.” 4 Cir. 2000) (internal quotation marks omitted); see Redd v. 5 McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003) (limitations period 6 began to run when the Board denied prisoner’s administrative 7 appeal challenging denial of parole). Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th 8 III 9 A The parties first dispute the commencement date of 11 For the Northern District of California United States District Court 10 AEDPA’s one-year limitations period. 12 limitations period began to run on the date the Board’s initial 13 decision became final, which he defines as 150 days after the 14 Board issued its initial decision. 15 counters that the one-year limitations period began on March 29, 16 2010, the date of the Board’s initial decision, because 17 Petitioner was present at the hearing and thus was aware of the 18 factual predicate of his claim. 19 concludes that neither party is correct. 20 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 21 the purposes of § 2244(d)(1)(D), a petitioner learns of the 22 factual predicate of his claim on the date the Board’s decision 23 became final, which is the date that the decision is no longer 24 subject to further administrative review by the Board. 25 F.3d at 1082-83, 1085. 26 petitioner could have learned of the factual predicate of his 27 claim through the exercise of due diligence when the Board denied 28 his administrative appeal. Redd, 343 The Redd court concluded that the Id. at 1082-84. 4 1 In 2003, when Redd was decided, California prisoners 2 could challenge the Board’s adverse parole decision by seeking an 3 administrative appeal from a final decision of the Board. Van 4 Houten v. Davison, 2009 WL 811596, at *5 (C.D. Cal 2009). In 5 2004, however, the California Legislature abandoned the 6 administrative grievance procedure. 7 initial decision is considered a “proposed decision” that is 8 subject to internal administrative review by the Board’s chief 9 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. 11 For the Northern District of California United States District Court 10 of any intervening change or modification by the Board’s chief 12 counsel or designee, the proposed decision becomes final on the 13 120th day following the date of the hearing decision. 14 In the absence Id. Consequently, because the 120-day provision in the 15 California Code of Regulations replaced the Board’s 16 administrative appeal process in effect at the time of Redd, the 17 Board’s decision now becomes final 120 days after the date it 18 issues its initial decision. 19 the factual predicate of his claim on July 27, 2010, 120 days 20 after the Board issued its initial decision. 21 Hartley, 2010 WL 2556832 at *15 (E.D. Cal. 2010) (summarizing 22 many cases holding that Board’s decision becomes final 120 days 23 after Board issues its initial decision). 24 although the Board denied Petitioner’s parole on March 29, 2010, 25 the parole decision itself stated that it would not be final 26 until July 27, 2010, which is 120 days after Petitioner’s 27 hearing. 28 became final on July 27, 2010, and the limitations period for Thus, Petitioner became aware of Doc. #1 at Exh. 1, page 28. 5 See Riley v. Significantly, Thus, the Board’s decision 1 Petitioner’s claim began to run the next day, July 28, 2010. See 2 Shelby, 391 F.3d at 1066 (statute of limitation begins to run the 3 day after Board’s decision becomes final). 4 Petitioner relies on a December 12, 2007 magistrate 5 judge’s order in Van Houten, CV 07-5256-AG (AN), to argue that he 6 is entitled to thirty extra days for gubernatorial review before 7 the statute of limitations commenced. 8 thirty-day period to reverse or modify a parole decision after 9 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, 11 For the Northern District of California United States District Court 10 2010 WL 2902507, at *2 (E.D. Cal. 2010). 12 Petitioner’s argument, however, is inconsistent with 13 the holding in Redd and the statutory language. 14 above, under Redd, the date Petitioner became aware of the 15 factual predicate of his claim is the date that the Board’s 16 decision is no longer subject to the Board’s administrative 17 review. 18 underlying factual predicate giving rise to Petitioner’s claim. 19 Van Houten, 2009 WL 811596 at *8; see also Mayberry, 2010 WL 20 2902507 at *2. 21 magistrate judge’s order is misplaced. 22 order has been superseded by the later district court decision 23 holding that the extra thirty days for gubernatorial review are 24 unrelated to the administrative finality of the Board’s decision. 25 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 26 Thus, the one-year limitations period for Petitioner’s 27 federal petition began to run on July 28, 2010, the day after the 28 Board’s decision became final and the federal petition was due on 6 1 July 27, 2011. 2 (9th Cir. 2001) (adopting “anniversary method;” absent tolling, 3 the expiration date of the limitation period will be the same 4 date as the triggering event but in the following year). 5 Petitioner did not provide his instant petition to prison 6 officials for mailing until December 19, 2011. 7 petition is time-barred unless Petitioner is entitled to 8 statutory or equitable tolling. See Patterson v. Stewart, 251 F.3d 1243, 1246 9 Therefore, the B AEDPA’s one-year limitations period may be tolled for 11 For the Northern District of California United States District Court 10 “[t]he time during which a properly filed application for State 12 post-conviction or other collateral review with respect to the 13 pertinent judgment or claim is pending.” 14 An application is “pending” until it has achieved final 15 resolution through the state’s post conviction procedures. 16 v. Saffold, 536 U.S. 214, 220 (2002). 17 28 U.S.C. § 2244(d)(2). Carey The parties dispute the time during which the petition 18 was “pending.” 19 statutory tolling for the 230 days between the date the state 20 superior court denied his petition and the date he filed his 21 petition in the Court of Appeal. 22 days constituted an unjustified, unexplained and unreasonable 23 delay and, therefore, Petitioner is not entitled to tolling for 24 this time period. 25 agrees with Respondent. 26 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 27 within a “reasonable time.” 28 Chavis, 546 U.S. 189, 192 (2006). Carey, 536 U.S. at 221; Evans v. 7 To determine whether a 1 petition was “pending,” a federal court must determine whether a 2 petitioner “delayed ‘unreasonably’ in seeking [higher state 3 court] review.” 4 a lower court decision and a filing of a new petition in a higher 5 court is treated as time the petition is “pending” as long as the 6 petitioner did not “unreasonably delay” in seeking review. 7 at 221-23; accord Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 8 1999). 9 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 11 For the Northern District of California United States District Court 10 that it “does not lead to filing delays substantially longer than 12 those in States with determinate timeliness rules.” 13 U.S. at 200. 14 days, the time that most States provide for filing an appeal. 15 Id. at 200 (quoting Carey, 536 U.S. at 219). 16 Evans, 546 The benchmark set forth in Evans is thirty to sixty In Evans, the Court held that an unexplained six-month 17 delay between post-conviction applications in California is not 18 “reasonable” and therefore does not fall within the meaning of 19 “pending” under Carey. 20 the Ninth Circuit has held that delays substantially longer than 21 the “thirty to sixty day” benchmark were unreasonable. 22 Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011) 23 (concluding that delays of ninety-one and eighty-one days between 24 state habeas petitions was unreasonable); Chaffer v. Prosper, 592 25 F.3d 1046, 1048 (9th Cir. 2010) (finding delays of 115 and 101 26 days between California habeas petitions unreasonable); Livermore 27 v. Sandor, 487 Fed. Appx. 342, 243-44 (9th Cir. 2012) 28 (unpublished memorandum disposition) (delay of seventy-six days Evans, 546 U.S. at 201. 8 Following Evans, See e.g., 1 2 between state habeas petitions is unreasonable). Here, Petitioner’s unexplained delay of 230 days is 3 substantially longer than the thirty to sixty day bench mark set 4 forth in Evans. 5 sixty days is normally allotted, is not reasonable. 6 reliance on Espinoza v. Schwarzenegger, 2010 WL 231380, at *2-3 7 (E.D. Cal. 2010), which concluded that five-month and eight-month 8 delays between state court petitions were reasonable, is called 9 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 11 For the Northern District of California United States District Court 10 unreasonable. 12 between state court filings substantially exceeds the Evans 13 benchmark of thirty to sixty days and also exceeds the delays the 14 Ninth Circuit has found to be unreasonable, he is not entitled to 15 statutory tolling for this time period. 16 Because Petitioner’s unexplained 230-day delay The time intervals between Petitioner’s state habeas 17 petitions are as follows. 18 year limitations period began to run, and November 15, 2010, the 19 date Petitioner filed his state habeas petition in the superior 20 court, 110 days passed. 21 petition was pending in the superior court. 22 2011, the date the superior court denied Petitioner’s petition, 23 and September 8, 2011, the date Petitioner filed his state habeas 24 petition in the California Court of Appeal, 230 days expired. 25 Thirteen days were tolled while the petition was pending in the 26 Court of Appeal. 27 of Appeal denied the petition and September 25, 2011, the date 28 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 9 1 four days were tolled. 2 petition was pending in the California Supreme Court. 3 between November 2, 2011, the date the California Supreme Court 4 denied the petition, and December 19, 2011, the date Petitioner 5 filed the instant petition, forty-seven days of the limitations 6 period expired. 7 Thirty-eight days were tolled while the Finally, In sum, a total of 509 days elapsed between the 8 commencement of the limitations period and the filing of the 9 federal petition. During this period, 122 days were tolled. After deducting 122 tolled days, the petition was filed 387 days 11 For the Northern District of California United States District Court 10 after the one-year statute of limitations commenced, or twenty- 12 two days too late. 13 Petitioner is entitled to equitable tolling. 14 Thus, the petition is untimely, unless C 15 The AEDPA one-year limitations period may be subject to 16 equitable tolling in limited circumstances. 17 Florida, 130 S. Ct. 2549, 2560 (2010). 18 applicable only "if extraordinary circumstances beyond a 19 prisoner's control make it impossible to file a petition on 20 time." 21 (quoting Beeler, 128 F.3d 1283, 1288 (9th Cir. 1997)). 22 qualify for equitable tolling, a petitioner must show (1) that he 23 has been pursuing his rights diligently, and (2) that some 24 extraordinary circumstance stood in his way and prevented timely 25 filing. 26 show that the extraordinary circumstance were the cause of his 27 untimeliness. 28 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. 10 1 Petitioner is not entitled to equitable tolling because 2 he does not present any grounds, nor are any apparent in the 3 record, for such tolling. 4 dismiss the petition as untimely must be granted. 5 Accordingly, Respondent's motion to Because the petition is untimely, the Court need not 6 address Respondent's alternate argument that Petitioner failed to 7 exhaust his Ex Post Facto claim in the state courts. 8 9 IV For the foregoing reasons, Respondent’s motion to dismiss the petition is GRANTED. 11 For the Northern District of California United States District Court 10 certificate of appealability will not issue because Petitioner 12 has not made “a substantial showing of the denial of a 13 constitutional right.” 14 not shown that “jurists of reason would find it debatable whether 15 the petition states a valid claim of the denial of a 16 constitutional right, and that jurists of reason would find it 17 debatable whether the district court was correct in its 18 procedural ruling.” 19 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 20 as moot and close the file. 21 IT IS SO ORDERED. 22 23 24 DATED: 03/07/2013 THELTON E. HENDERSON United States District Judge 25 26 27 G:\PRO-SE\TEH\HC.12\Davis12-0033DIS SOL.wpd 28 11

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