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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GEORGE GARCIA (K-70562),

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United States District Court
For the Northern District of California

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No. C 12-3358 SI (pr)

Petitioner,

ORDER OF DISMISSAL

v.
GREG D. LEWIS, warden,

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Respondent.
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INTRODUCTION

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George Garcia filed this pro se action seeking a writ of habeas corpus under 28 U.S.C.

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§ 2254. He claims that his constitutional rights, including his right to be free of ex post facto

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laws, were violated when prison officials applied to him a statute that had been amended as of

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January 25, 2010 to decrease the time credits he would earn in prison. The matter is now before

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the court for consideration of respondent's motion to dismiss the petition as untimely. For the

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reasons discussed below, the court finds the petition to be barred by the statute of limitations and

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dismisses it.

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BACKGROUND

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Garcia was convicted in Imperial County Superior Court of battery on a non-inmate and

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was sentenced upon a guilty plea in 2006 to four years in prison. He currently is housed in the

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security housing unit ("SHU") at Pelican Bay State Prison due to his validation as an associate

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or member of a prison gang. He does not challenge the validation in this action. Instead, he

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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

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Regulations has adversely impacted the rate at which he receives time credits on his sentence.

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Under the former law, SHU inmates like him were assigned to work group D-1 and were

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awarded one day of credit for every two days served; after the change in the law, those inmates

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were reassigned to work group D-2, and consequently ceased earning such credits. That, in turn,

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apparently will lengthen the time he spends in prison. A credit calculation worksheet and legal

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status summary worksheet showed that the application of the new statute will extend his

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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,

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2010. On February 8, 2010, the classification committee met and changed Garcia's credit-

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United States District Court
For the Northern District of California

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earning status, effective as of January 25, 2010. See Docket # 4-1, p. 28. Garcia had the

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opportunity, but refused, to attend that classification committee meeting. On February 23, 2010,

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Garcia received a revised calculation worksheet that showed his earliest possible release date

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("EPRD") as calculated under the new credit earning system pursuant to § 2933.6. See Docket

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# 4-1, p. 42 (February 23, 2010 calculation worksheet showing and an EPRD of March 26,

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2017); Docket # 5-1, p. 2 (Garcia declaration that he received the worksheet on February 23,

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2010); cf. # 4-1, p. 40 (October 20, 2008 calculation worksheet showing an EPRD of June 4,

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2015). Garcia states that classification committee chronos usually take three weeks to get to the

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inmate, and he thinks he received the chrono for the February 8 classification committee meeting

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on or about March 1, 2010. See Docket # 5, p. 3; # 5-1, p. 2.

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Garcia did not file any administrative appeal regarding the change in credit earning status.

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See Docket # 4-1, p. 6. He did file state habeas petitions: his petition in the Del Norte County

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Superior Court was signed on February 9, 2011, and denied on December 14, 2011; his petition

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in the California Court of Appeal was filed on an unstated date and denied on February 8, 2012;

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his petition in the California Supreme Court was signed on February 20, 2012, and denied on

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May 16, 2012. His federal petition has a proof of service indicating it was mailed on June 20,

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2012.

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Due to Garcia'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 officials

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to mail to the court rather than the day the document reaches the courthouse. See Stillman v.

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

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his petitions is deemed filed as of the day the proof of service shows it was mailed to the

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appropriate court. As to any document without a proof of service, the court assumes for present

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purposes that it was given to prison officials to mail on the date the inmate signed it.

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

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United States District Court
For the Northern District of California

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

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habeas petitions filed by persons in “custody pursuant to the judgment of a State court,” even

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if the petition challenges an administrative decision rather than a state court judgment. Shelby

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v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004) (quoting 28 U.S.C. § 2244(d)(1)). Although

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the limitations period has four possible starting dates, § 2244(d)(1)(D) usually applies to

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prisoners challenging administrative decisions such as disciplinary decisions, i.e., the limitations

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period starts on the "date on which the factual predicate of the claim or claims presented could

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have been discovered through the exercise of due diligence."1 The one-year limitations period

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normally begins on the date the administrative decision becomes final. See Shelby, 391 F.3d at

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1066 (limitations period began the day after prisoner received timely notice of the denial of his

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administrative appeal challenging disciplinary decision); see also Redd v. McGrath, 343 F.3d

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1077, 1079 (9th Cir. 2003) (limitations period began when BPT denied prisoner's administrative

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

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

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

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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
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newly recognized constitutional right involved. See 28 U.S.C. § 2244(d)(1)(A-C).
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Garcia did not file an administrative appeal because he believed he did not need to file

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one for his challenge to the change caused by the statutory amendment. See Docket # 4-1, p. 6.

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Since there was no inmate appeal, there was no final administrative decision, and the Redd rule

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cannot be applied. Instead, the appropriate date for the start of Garcia's limitations period is

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February 23, 2010, when he learned he would not be earning credits at the same rate as he did

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under the old system. That is the date on which the factual predicate of all of his claims was or

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could have been discovered through the exercise of due diligence.

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2244(d)(1)(D). The one-year limitations period started the next day. The presumptive deadline

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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

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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 considered

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

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

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petition at a higher level court and does so “within what California would consider a ‘reasonable

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time.’” Evans v. Chavis, 546 U.S. 189, 197-98 (2006); Carey v. Saffold, 536 U.S. 214, 219-20

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(2002).

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Garcia does not have enough statutory tolling to make his federal petition timely. The

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parties agree that the limitations period should be tolled from the filing of the first state petition

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on February 9, 2012, through the denial of the last state petition on May 16, 2012. By the time

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Garcia filed that first state petition, 351 days of the limitations period had already passed. After

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the denial of the last state habeas petition, another 35 days passed before the federal petition was

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filed on June 20, 2012. Thus, by the time Garcia filed his federal petition, 386 untolled days

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had passed, and he was three weeks past the deadline. (Even if one used March 1, 2010 – i.e.,

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the date on which he received the classification committee chrono informing him that § 2933.6

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was being applied to him – Garcia's federal petition would be too late, albeit two rather than

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three weeks too late.)

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

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he pursued his rights with reasonable diligence and that some extraordinary circumstance stood

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in his way and prevented timely filing. See Holland v. Florida, 130 S. Ct. 2549, 2562 (2010).

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Garcia has not shown any basis for equitable tolling of the limitations period.

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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

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

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

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United States District Court
For the Northern District of California

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district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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CONCLUSION

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Respondent’s motion to dismiss is GRANTED. (Docket # 4.) The petition for writ of

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

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in 28 U.S.C. § 2244(d)(1). The clerk will close the file.

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IT IS SO ORDERED.
DATED: February 27, 2013
SUSAN ILLSTON
United States District Judge

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