Reece v. Swarthout

Filing 9

ORDER DENYING MOTION TO DISMISS AND STAYING ACTION 5 6 (Illston, Susan) (Filed on 11/4/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHARLES G. REECE,

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Petitioner,

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No. C 13-2515 SI (pr)
ORDER DENYING MOTION TO
DISMISS AND STAYING ACTION

v.

United States District Court
For the Northern District of California

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GARY SWARTHOUT, Warden,
Respondent.

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INTRODUCTION

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Charles G. Reece, an inmate at San Quentin State Prison, filed this pro se action for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed a motion to dismiss on the

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grounds that the petition is untimely and fails to state a federal question, which Reece has

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opposed. For the reasons discussed below, the court concludes that the action is not time-barred.

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The court also reviews the claims in the petition, determines that only one claim is cognizable,

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and chooses to stay that claim until the Ninth Circuit decides another pending case raising the

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same issue.

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BACKGROUND

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Reece was convicted in Los Angeles County Superior Court of kidnapping for robbery

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in or about 1984 and was sentenced to a term of life imprisonment plus six years. Reece's

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petition does not challenge that conviction; instead, he challenges the denial of parole at a BPH

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hearing on August 31, 2010.

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He filed state habeas petitions to challenge that denial of parole. His habeas petition in

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the Los Angeles County Superior Court was filed on January 7, 2011, and denied on March 14,

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2011. His habeas petition in the California Court of Appeal was filed on May 11, 2011, and

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denied on May 18, 2011. His habeas petition in the California Supreme Court was filed on June

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20, 2011, and denied on February 15, 2012.

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Reece's federal petition for writ of habeas corpus has a proof of service showing it was

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mailed to the U.S. District Court (at the wrong address) on May 24, 2013. The envelope was

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stamped "received" at this courthouse on May 30, 2013, and the petition was stamped "filed" on

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June 4, 2013. Due to Reece’s status as a prisoner proceeding pro se, he receives the benefit of

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the prisoner mailbox rule, which deems most documents filed when they are given to prison

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officials to mail to the court rather than the day the document actually reaches the courthouse.

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

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motion, the federal petition is deemed filed as of May 24, 2013.

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DISCUSSION
A.

The Petition Is Not Time-Barred

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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 the

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

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prisoners challenging administrative decisions such as parole denials, i.e., the limitations period

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runs from the "date on which the factual predicate of the claim or claims presented could have

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been discovered through the exercise of due diligence," and the one-year limitations period

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

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

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of his administrative appeal challenging disciplinary decision); Redd v. McGrath, 343 F.3d 1077,

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1079 (9th Cir. 2003) (limitations period began to run 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 date on which the adverse administrative decision becomes final and

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not the denial of the state habeas petition. See Redd, 343 F.3d at 1082.

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The BPH's August 31, 2010 decision denying parole for Reece became final on December

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29, 2010. See 8/31/10 RT 73. That is the date on which the one-year limitations period started.

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Although Reece learned the crucial fact – i.e., that he would not be paroled -- at his parole

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hearing, the decision was subject to review and revision for a limited period thereafter. See 15

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Cal. Code Regs. § 2041(h) (referring to decisions at parole hearings as “[p]roposed decisions”

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that were subject to review by the chief counsel or a designee). Respondent may be correct that

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parole denials are rarely modified, but the possibility does exist that they can be modified and

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the statute identifies them as proposed decisions. Under the circumstances, the date on which

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the decision becomes final is the date that starts the limitations period. The presumptive

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deadline for Reece to file his federal habeas petition therefore was December 29, 2011.

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The one-year limitations period will be 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."

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administrative decision can receive statutory tolling for the period when state habeas petitions

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are pending. See Redd, 343 F.3d at 1084. A state habeas petition is considered pending not

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only for the time the case is open on the docket of a state court, but also for the time period

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between state habeas petitions if the petitioner files the later state habeas petition at a higher

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level court and does so “within what California would consider a ‘reasonable time.’” Evans v.

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Chavis, 546 U.S. 189, 197-98 (2006); Carey v. Saffold, 536 U.S. 214, 219-20 (2002). Reece

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receives statutory tolling from the filing of his first state habeas petition on January 7, 2011,

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through the denial of his last state habeas petition on February 15, 2012. Respondent does not

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dispute that Reece is entitled to tolling for the time during which each state petition was actually

28 U.S.C. § 2244(d)(2).

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A prisoner challenging an

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open on the docket of a court as well as the short periods of time between each of the state

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habeas petitions.

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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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The critical question in this case is whether Reece receives tolling for the several months after

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the California Supreme Court denied his petition. Reece contends that, although the California

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Supreme Court denied his petition on February 5, 2012, he was unaware of that fact until

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January 23, 2013, when he first received a copy of the order denying his petition. Reece has

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presented evidence that: (1) he did not receive the decision in February 2012 when it first issued;

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(2) he wrote to the California Supreme Court in April 2012 asking about the status of his case,

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and the California Supreme Court responded by mistakenly providing information about another

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inmate’s petition; (3) he wrote to the California Supreme Court again in April 2012 inquiring

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about his case, and received no response; (3) he wrote to the California Supreme Court again on

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January 17, 2013, requesting information about the status of his habeas petition and, on January

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23, 2013, the California Supreme Court informed him of the denial of his petition that had

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occurred eleven months earlier. Equitable tolling is appropriate for the period from February

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15, 2012 through January 23, 2013 in light of the evidence that Reece did not receive timely

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notice of the California Supreme Court’s denial of his petition, despite his several efforts to learn

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the status of that petition. Respondent asserts that Reece was not diligent in his efforts to learn

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the status of his habeas petition because he did not immediately contact the California Supreme

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Court in April 2012 when he did not receive a prompt response to his second inquiry. The court

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disagrees; although in retrospect it does appear that the mail may have been lost, the nature of

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unanswered mail is that the sender usually doesn't know whether it has been lost, forgotten, or

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is being processed until long after the fact. Reece is entitled to equitable tolling for the period

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between the California Supreme Court's denial of his petition and the time the California

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Supreme Court informed him of the denial.

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Reece’s federal petition was deemed filed on May 24, 2013. At that time, he was slightly

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more than four months into the one-year limitations period, i.e., seven days of the limitations

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period had passed before the statutory and then equitable tolling periods paused the clock, and

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then approximately four months passed between the end of the equitable tolling period and the

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filing of the federal petition. Reece’s federal petition for writ of habeas corpus therefore is not

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barred by the habeas statute of limitations. Respondent's motion to dismiss is DENIED.

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(Docket # 6.)

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B.

Review of Petition

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Having determined that the petition is not untimely, the court now determines which, if

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any, of the claims in the petition warrant a response. This court may entertain a petition for writ

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of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only

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on the ground that he is in custody in violation of the Constitution or laws or treaties of the

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United States." 28 U.S.C. § 2254(a).

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The petition alleges three claims, only the last of which may go forward. First, Reece

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contends that the BPH violated his “substantive due process right” by applying Proposition 9 to

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him because that Proposition does not apply to non-murderers. Docket # 1, p. 6. This claim is

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meritless. Proposition 9 was not textually limited to murderers, and the statutory amendment

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to California Penal Code § 3041.5 that resulted from Proposition 9 was not limited to murderers.

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Indeed, it was in a case brought by a prisoner serving an indeterminate life term on a kidnapping

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conviction that the California Supreme Court found that Proposition 9 did not violate prisoners’

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ex post facto rights. See In re. Vicks, 56 Cal. 4th 274, 284 (Cal. 2013) (upholding application

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of Marsy’s law to kidnapper). Reece urges that, since the “Purposes and Intent” section of

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Proposition 9 mentioned murderers, it implicitly excluded all other criminals. See Docket # 1-1

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at 10-11. This argument fails because even the “Statement of Purposes and Intent” section was

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broader than just murderers: although it did state that the purpose of the initiative was to limit

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the frequency of parole hearings for murderers, it also stated that its purpose was to “[p]rovide

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victims with rights to justice and due process,” which expands its reach beyond killers. See Cal.

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Proposition 9 (2008) (available in Westlaw's Ca-Legis-Old database). Proposition 9 explicitly

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amended California Penal Code § 3041.5 to lengthen the default parole periods for all prisoners

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to whom that section applied, not just for murderers. Section 3041.5 applied to kidnappers like

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Reece before and after the amendments caused by Proposition 9. Reece’s claim that the

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application of Proposition 9 and California Penal Code § 3041.5, as amended, to a kidnapper like

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him violated his right to substantive due process is dismissed without leave to amend.

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Second, Reece contends that his right to due process was violated by the BPH’s reliance

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on insight, taking responsibility and “minimizing” to deny him parole because those factors are

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not part of the state regulations. This claim must be dismissed. A “federal court may issue a

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writ of habeas corpus to a state prisoner ‘only on the ground that he is in custody in violation of

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the Constitution or laws or treaties of the United States.’” Swarthout v. Cooke, 131 S. Ct. 859,

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861 (2011) (citations omitted.) The court may not grant habeas relief for state law errors. Id.

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For purposes of federal habeas review, a California prisoner is entitled to only “minimal”

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procedural protections in connection with a parole suitability determination. The procedural

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protections to which the prisoner is entitled under the Due Process Clause of the Fourteenth

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Amendment to the U.S. Constitution are limited to an opportunity to be heard and a statement

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of the reasons why parole was denied. See id. at 862. Reece does not dispute that he received

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those two procedural protections, and the record before this court plainly shows that he did

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receive them. The Cooke Court explained that no Supreme Court case “supports converting

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California’s ‘some evidence’ rule into a substantive federal requirement,” id., and the Ninth

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Circuit erred in holding otherwise. In light of the Supreme Court’s determination that the

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constitutionally-mandated procedural protections do not include a requirement that there be

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some evidence to support the parole denial, the due process claim must be rejected. Cooke bars

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a claim not only to a challenge to the quantum of evidence, but also to a challenge to the

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categories of evidence used by the parole board. The state court's rejection of Reece’s

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procedural due process challenges was not contrary to or an unreasonable application of

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Supreme Court precedent.

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Finally, Reece contends that his right to be free of ex post facto laws was violated when

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the BPH denied him parole for 5 years pursuant to the statute as amended by Proposition 9 in

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2008. Giving the pro se petition the liberal construction to which it is entitled, the court cannot

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say that the claim is patently frivolous. See Gilman v. Schwarzenegger, 638 F.3d 1101, 1108-11

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(9th Cir. 2011) (§ 1983 class action plaintiffs could not succeed on the merits of their ex post

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facto challenge to Proposition 9 unless (1) Proposition 9, on its face, created a significant risk

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of increasing the punishment of California life-term inmates, or (2) the plaintiffs demonstrate,

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by evidence drawn from Proposition 9's practical implementation, that its retroactive application

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will result in a longer period of incarceration than under the prior law); but see In re Vicks, 56

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Cal. 4th 274, 284 (Cal. 2013) (rejecting ex post facto challenge to Proposition 9/Marsy's Law

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provision). The Ninth Circuit issued a certificate of appealability in a pending case on the issue

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of whether an ex post facto challenge to the application of Proposition 9/Marsy's Law is

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cognizable in a federal habeas proceeding, and heard oral argument in the matter on August 12,

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2013. See Burnight v. Swarthout, Ninth Cir. Case No. 11-16062.

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In light of the fact that the Ninth Circuit has a case in which it will decide the same issue

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presented by Reece’s petition and will do so in a case that is far-advanced and already has had

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oral argument, it would be an unnecessary consumption of judicial resources for this court to

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decide the issue at this time. By waiting for the Ninth Circuit’s decision, the court avoids the

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possibility of having to decide the same issue twice– once now and once again after Burnight.

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Therefore, this action will be stayed until a decision issues in Burnight or further order of this

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court. After Burnight is decided, the court will set a briefing schedule on the ex post facto claim,

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unless Burnight rules that such a claim may not be pursued in a federal habeas action.

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CONCLUSION

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For the foregoing reasons,

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Respondent's motion to dismiss is DENIED. (Docket # 6.)

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2.

Petitioner’s “motion to inform court” is DENIED as unnecessary. (Docket # 5.)

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The information in that document was in the nature of an anticipated opposition to respondent’s

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motion to dismiss, but was filed before the motion to dismiss was filed. Petitioner repeated his

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arguments in his opposition to the motion to dismiss. Petitioner was not permitted to file two

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oppositions to the motion to dismiss.

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3.

The petition states a cognizable claim for an ex post facto violation.

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This action is now STAYED and the clerk shall ADMINISTRATIVELY CLOSE

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the action. Nothing further will take place in this action until the Burnight case is decided by

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the Ninth Circuit or until further order of this court.

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IT IS SO ORDERED.

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DATED: November 4, 2013
SUSAN ILLSTON
United States District Judge

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