Garcia v. Lewis

Filing 7

ORDER OF DISMISSAL: Granting 4 respondent's motion to dismiss. The petition for writ of habeas corpus is dismissed because it was not filed before the expiration of the limitations period in 28 U.S.C. § 2244(d)(1). The clerk will close the file. (Illston, Susan) (Filed on 2/27/2013) Modified on 2/27/2013 (ysS, COURT STAFF).

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 GEORGE GARCIA (K-70562), 9 United States District Court For the Northern District of California 10 11 No. C 12-3358 SI (pr) Petitioner, ORDER OF DISMISSAL v. GREG D. LEWIS, warden, 12 Respondent. / 13 14 INTRODUCTION 15 George Garcia filed this pro se action seeking a writ of habeas corpus under 28 U.S.C. 16 § 2254. He claims that his constitutional rights, including his right to be free of ex post facto 17 laws, were violated when prison officials applied to him a statute that had been amended as of 18 January 25, 2010 to decrease the time credits he would earn in prison. The matter is now before 19 the court for consideration of respondent's motion to dismiss the petition as untimely. For the 20 reasons discussed below, the court finds the petition to be barred by the statute of limitations and 21 dismisses it. 22 23 BACKGROUND 24 Garcia was convicted in Imperial County Superior Court of battery on a non-inmate and 25 was sentenced upon a guilty plea in 2006 to four years in prison. He currently is housed in the 26 security housing unit ("SHU") at Pelican Bay State Prison due to his validation as an associate 27 or member of a prison gang. He does not challenge the validation in this action. Instead, he 28 challenges a change in the law that has adversely affected the rate at which he earns time credits. He contends that an amendment to California Penal Code § 2933.6 and the California Code of 1 Regulations has adversely impacted the rate at which he receives time credits on his sentence. 2 Under the former law, SHU inmates like him were assigned to work group D-1 and were 3 awarded one day of credit for every two days served; after the change in the law, those inmates 4 were reassigned to work group D-2, and consequently ceased earning such credits. That, in turn, 5 apparently will lengthen the time he spends in prison. A credit calculation worksheet and legal 6 status summary worksheet showed that the application of the new statute will extend his 7 minimum release date from June 6, 2015 to March 26, 2017. See Docket # 1, p. 7. The potentially relevant dates are these: Section 2933.6 became effective January 25, 9 2010. On February 8, 2010, the classification committee met and changed Garcia's credit- 10 United States District Court For the Northern District of California 8 earning status, effective as of January 25, 2010. See Docket # 4-1, p. 28. Garcia had the 11 opportunity, but refused, to attend that classification committee meeting. On February 23, 2010, 12 Garcia received a revised calculation worksheet that showed his earliest possible release date 13 ("EPRD") as calculated under the new credit earning system pursuant to § 2933.6. See Docket 14 # 4-1, p. 42 (February 23, 2010 calculation worksheet showing and an EPRD of March 26, 15 2017); Docket # 5-1, p. 2 (Garcia declaration that he received the worksheet on February 23, 16 2010); cf. # 4-1, p. 40 (October 20, 2008 calculation worksheet showing an EPRD of June 4, 17 2015). Garcia states that classification committee chronos usually take three weeks to get to the 18 inmate, and he thinks he received the chrono for the February 8 classification committee meeting 19 on or about March 1, 2010. See Docket # 5, p. 3; # 5-1, p. 2. 20 Garcia did not file any administrative appeal regarding the change in credit earning status. 21 See Docket # 4-1, p. 6. He did file state habeas petitions: his petition in the Del Norte County 22 Superior Court was signed on February 9, 2011, and denied on December 14, 2011; his petition 23 in the California Court of Appeal was filed on an unstated date and denied on February 8, 2012; 24 his petition in the California Supreme Court was signed on February 20, 2012, and denied on 25 May 16, 2012. His federal petition has a proof of service indicating it was mailed on June 20, 26 2012. 27 Due to Garcia's status as a prisoner proceeding pro se, he receives the benefit of the 28 2 1 prisoner mailbox rule, which deems most documents filed when they are given to prison officials 2 to mail to the court rather than the day the document reaches the courthouse. See Stillman v. 3 Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003). For purposes of the present motion, each of 4 his petitions is deemed filed as of the day the proof of service shows it was mailed to the 5 appropriate court. As to any document without a proof of service, the court assumes for present 6 purposes that it was given to prison officials to mail on the date the inmate signed it. 7 8 DISCUSSION A petition for writ of habeas corpus filed by a state prisoner must comply with the statute 10 United States District Court For the Northern District of California 9 of limitations in 28 U.S.C. § 2244(d). Section 2244's one-year limitations period applies to all 11 habeas petitions filed by persons in “custody pursuant to the judgment of a State court,” even 12 if the petition challenges an administrative decision rather than a state court judgment. Shelby 13 v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004) (quoting 28 U.S.C. § 2244(d)(1)). Although 14 the limitations period has four possible starting dates, § 2244(d)(1)(D) usually applies to 15 prisoners challenging administrative decisions such as disciplinary decisions, i.e., the limitations 16 period starts on the "date on which the factual predicate of the claim or claims presented could 17 have been discovered through the exercise of due diligence."1 The one-year limitations period 18 normally begins on the date the administrative decision becomes final. See Shelby, 391 F.3d at 19 1066 (limitations period began the day after prisoner received timely notice of the denial of his 20 administrative appeal challenging disciplinary decision); see also Redd v. McGrath, 343 F.3d 21 1077, 1079 (9th Cir. 2003) (limitations period began when BPT denied prisoner's administrative 22 appeal challenging the BPT's decision that he was unsuitable for parole). The "factual predicate" 23 of the habeas claims is the finality of the adverse administrative decision, and not the denial of 24 the state habeas petition. See Redd, 343 F.3d at 1082. 25 1 None of the other alternative starting dates in § 2244(d)(1) applies to Garcia's circumstances. That is, the limitations period for his challenge to § 2933.6's application to him did not start when his 2006 criminal conviction became final upon the conclusion of direct 27 review; there was no state-created impediment to him filing a habeas action; and there was no newly recognized constitutional right involved. See 28 U.S.C. § 2244(d)(1)(A-C). 26 28 3 1 Garcia did not file an administrative appeal because he believed he did not need to file 2 one for his challenge to the change caused by the statutory amendment. See Docket # 4-1, p. 6. 3 Since there was no inmate appeal, there was no final administrative decision, and the Redd rule 4 cannot be applied. Instead, the appropriate date for the start of Garcia's limitations period is 5 February 23, 2010, when he learned he would not be earning credits at the same rate as he did 6 under the old system. That is the date on which the factual predicate of all of his claims was or 7 could have been discovered through the exercise of due diligence. 8 2244(d)(1)(D). The one-year limitations period started the next day. The presumptive deadline 9 for Garcia to file his federal habeas petition therefore was February 24, 2011. See 28 U.S.C. § United States District Court For the Northern District of California 10 The one-year limitations period is tolled for the "time during which a properly filed 11 application for State post-conviction or other collateral review with respect to the pertinent 12 judgment or claim is pending." 28 U.S.C. § 2244(d)(2). A state habeas petition is considered 13 pending not only for the time the case is open on the docket in a court, but also for the time 14 period between state habeas petitions provided that the petitioner files the later state habeas 15 petition at a higher level court and does so “within what California would consider a ‘reasonable 16 time.’” Evans v. Chavis, 546 U.S. 189, 197-98 (2006); Carey v. Saffold, 536 U.S. 214, 219-20 17 (2002). 18 Garcia does not have enough statutory tolling to make his federal petition timely. The 19 parties agree that the limitations period should be tolled from the filing of the first state petition 20 on February 9, 2012, through the denial of the last state petition on May 16, 2012. By the time 21 Garcia filed that first state petition, 351 days of the limitations period had already passed. After 22 the denial of the last state habeas petition, another 35 days passed before the federal petition was 23 filed on June 20, 2012. Thus, by the time Garcia filed his federal petition, 386 untolled days 24 had passed, and he was three weeks past the deadline. (Even if one used March 1, 2010 – i.e., 25 the date on which he received the classification committee chrono informing him that § 2933.6 26 was being applied to him – Garcia's federal petition would be too late, albeit two rather than 27 three weeks too late.) 28 4 1 The § 2244(d) limitations period can be equitably tolled for a petitioner who shows that 2 he pursued his rights with reasonable diligence and that some extraordinary circumstance stood 3 in his way and prevented timely filing. See Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). 4 Garcia has not shown any basis for equitable tolling of the limitations period. 5 6 The federal petition was not filed until three weeks after the statute of limitations deadline had passed. The petition is barred by the habeas statute of limitations. A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case 8 in which "jurists of reason would find it debatable whether the petition states a valid claim of 9 the denial of a constitutional right, and that jurists of reason would find it debatable whether the 10 United States District Court For the Northern District of California 7 district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). 11 12 CONCLUSION 13 Respondent’s motion to dismiss is GRANTED. (Docket # 4.) The petition for writ of 14 habeas corpus is dismissed because it was not filed before the expiration of the limitations period 15 in 28 U.S.C. § 2244(d)(1). The clerk will close the file. 16 17 IT IS SO ORDERED. DATED: February 27, 2013 SUSAN ILLSTON United States District Judge 18 19 20 21 22 23 24 25 26 27 28 5

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