Miranda v. Lewis
Filing
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ORDER OF DISMISSAL : Granting 7 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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ANTONIO MIRANDA,
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Petitioner,
United States District Court
For the Northern District of California
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No. C 12-3658 SI (pr)
ORDER OF DISMISSAL
v.
G. LEWIS, warden,
Respondent.
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INTRODUCTION
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Antonio Miranda 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 right to be free of ex post facto laws was violated when
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prison officials applied to him a statute that had been amended as of January 25, 2010 to
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decrease the time credits he would earn in prison. The matter is now before the court for
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consideration of respondent's motion to dismiss the petition as untimely and procedurally barred.
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For the reasons discussed below, the court finds the petition to be barred by the statute of
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limitations and dismisses it without need to reach the procedural default argument.
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BACKGROUND
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Miranda was convicted in Riverside County Superior Court of assault with a semi-
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automatic firearm on a peace officer and was sentenced in April 2003 to fifteen years in prison.
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He currently is housed in the security housing unit ("SHU") at Pelican Bay State Prison due to
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his validation as an associate or member of a prison gang. He does not challenge the validation
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in this action. Instead, he challenges a change in the law that has adversely affected the rate at
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which he earns time credits. He contends that an amendment to California Penal Code § 2933.6
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and the California Code of Regulations has adversely impacted the rate at which he receives time
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credits on his sentence. Under the former law, SHU inmates like him were assigned to work
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group D-1 and were awarded one day of credit for every two days served; after the change in the
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law, those inmates were reassigned to work group D-2, and consequently ceased earning such
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credits. That, in turn, apparently will lengthen the time he spends in prison by extending his
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earliest possible release date ("EPRD") from March 25, 2016 to February 16, 2017. See Docket
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# 1, p. 8.
The potentially relevant dates are these: Section 2933.6 became effective January 25,
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United States District Court
For the Northern District of California
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2010. On May 27, 2010, Miranda attended a classification hearing during which prison officials
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informed him that his credit earning status would "change from 1/3 credit earning status (D1)
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to zero credit earning status (D2) effective 1/25/2010." Docket # 14-2. On June 3, 2010,
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Miranda received a revised calculation worksheet that showed an EPRD as calculated under the
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new credit earning system pursuant to § 2933.6. See Docket # 1, pp. 6, 8; Docket # 1-1, pp. 6,
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8 (calculation worksheet showing an EPRD of February 16, 2017); See also Docket # 8, p. 5
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(petitioner received his calculation worksheet and a legal status summary indicating his status
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change on June 3, 2010; "This[,] petitioner contends, was when he was first aware of the legal
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significance of his situation").
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Miranda did not file any administrative appeal regarding the change in credit earning
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status. See Docket # 7-4, p. 6 (arguing there is no need to exhaust because statute was applied
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statewide and "CDCR has no jurisdiction to ignore the law"). He did file state habeas petitions:
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his petition in the Del Norte County Superior Court was mailed for filing on November 2, 2011,
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and denied on February 3, 2012; his petition in the California Court of Appeal was filed on
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March 8, 2012, and denied on March 13, 2012; his petition in the California Supreme Court was
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signed on March 26, 2012, and denied on June 3, 2012. His federal petition has a proof of
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service indicating it was mailed on June 29, 2012.
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Due to Miranda'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
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petition is deemed filed as of the day the proof of service shows it was mailed to the appropriate
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court. As to any document without a proof of service, the court assumes for present purposes
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that it was given to prison officials to mail on the date the inmate signed it. As to any document
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without a proof of service or signature date, this court uses the actual filing date from the court
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docket sheet.
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United States District Court
For the Northern District of California
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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 statute
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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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None of the other alternative starting dates in § 2244(d)(1) applies to Miranda's
circumstances. That is, the limitations period for his challenge to § 2933.6's application to him
did not start when his criminal conviction became final upon the conclusion of direct review;
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recognized constitutional right involved. See 28 U.S.C. § 2244(d)(1)(A-C).
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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.
Miranda 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 statewide change in credit-earning caused by the statutory
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amendment. See Docket # 7-4, p. 6. Since there was no inmate appeal, there was no final
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administrative decision, and the Redd rule cannot be applied. Instead, the appropriate date for
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the start of Miranda's limitations period is May 27, 2010, when he was informed that his credit
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earning status was changed and that, effective January 25, 2010, he would be receiving no
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credits. That is the date on which the factual predicate of claim was or could have been
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United States District Court
For the Northern District of California
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discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1)(D). The one-year
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limitations period started the next day. The presumptive deadline for Miranda to file his federal
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habeas petition therefore was May 28, 2011.
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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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Miranda is not entitled to any statutory tolling – unless there is equitable tolling of the
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limitations period to bridge the gap – because his first state habeas petition was not filed until
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November 2, 2011, more than five months after the one-year limitations period had expired. See
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Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit
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the reinitiation of the limitations period that has ended before the state petition was filed,” even
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if the state petition was timely filed).
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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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Miranda contends that he should receive equitable tolling for the time during which he
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was in transition until late 2011 when he arrived in the actual security housing unit because he
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was without his paperwork and could not have prepared a "viable" administrative appeal or
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habeas petition. See Docket # 8, pp. 7-8. He contends that he remained in administrative
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segregation rather than the security housing unit from June 3, 2010 through November 8, 2011.
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Id. at 8. However, as he notes, he was able to and did prepare and mail his first state habeas
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petition while he was still in administrative segregation. See id. Miranda has not shown how he
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United States District Court
For the Northern District of California
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was prevented from filing a petition in the many months before November 2011. On May 30,
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2010, he signed a form stating he had received all his personal property while he was still in
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administrative segregation, see Docket # 14-1, undermining his contention that he needed
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paperwork. Regardless of whether he had all his legal and personal property, he has not shown
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what paperwork he needed that he did not have. The situation here is not like the situation where
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an inmate wants to challenge a conviction and might need his trial transcripts and state appellate
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briefs to prepare his petition. If, as Miranda claims, he first learned in May or June 2010 that
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§ 2933.6 was going to apply to him, there is no reason to suspect that older documents in his
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personal or legal property were necessary for him to prepare or file a petition challenging the
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application of § 2933.6 to him. The evidence in the record does not show that Miranda was
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attempting to pursue his rights with reasonable diligence and that some extraordinary
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circumstance stood in his way and prevented timely filing. He is not entitled to equitable tolling
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of the limitations period.
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The one-year limitations period began on May 28, 2010, and the federal petition was not
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filed until June 29, 2012, more than thirteen months after the statute of limitations deadline had
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passed. (If one used June 3, 2010 – i.e., the date on which he received the calculation worksheet
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showing how § 2933.6 would impact his sentence – as the starting date, Miranda's federal
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petition would be too late, although a week less so.) The petition is barred by the habeas statute
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of limitations.
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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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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 # 7.) 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
United States District Court
For the Northern District of California
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in 28 U.S.C. § 2244(d)(1). The clerk will close the file.
IT IS SO ORDERED.
DATED: February 27, 2013
SUSAN ILLSTON
United States District Judge
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