Isreal v. Hedgpeth
Filing
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 3/14/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 3/14/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MICHAEL ISREAL,
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Petitioner,
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v.
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A. HEDGPETH, Warden,
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Respondent.
)
_____________________________ )
No. C 09-04233 CW (PR)
ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS; DENYING CERTIFICATE
OF APPEALABILITY
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United States District Court
For the Northern District of California
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INTRODUCTION
Petitioner Michael Isreal, a state prisoner incarcerated at
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High Desert State Prison, filed a pro se petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254.
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filed an answer in which he requests that the Court either dismiss
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the petition as untimely, or, in the alternative, deny the petition
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on the merits.
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Respondent Hedgpeth
Petitioner then filed a traverse.
Having
considered the papers submitted, the Court denies the petition on
the merits, and thus finds it unnecessary to rule on timeliness.
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BACKGROUND
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In 1979, an Alameda County Superior Court jury convicted
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Petitioner of first degree murder.
He was sentenced to twenty-five
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years to life in state prison.
Petitioner had a parole suitability hearing originally
scheduled for August 12, 2005; however, it was cancelled on July
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26, 2005 and postponed to a later date.
(Resp't Ex. 3 at 10; Pet,
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Ex. A.)
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suitability hearing scheduled for August 1, 2006 was similarly
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cancelled and postponed to a later date.
One year later, on June 28, 2006, Petitioner's parole
(Resp't Ex. 3 at 13; Pet,
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Ex. B.)
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found Petitioner unsuitable for parole on the grounds that the
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circumstances of his commitment offense indicated that, if released
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from prison, he would pose an unreasonable risk of danger to
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society, or a threat to public safety, or both.
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denied parole for five years, and he will next be eligible for
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parole in 2012.
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United States District Court
For the Northern District of California
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Petitioner was
On November 29, 2007, the Board's decision became final.
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On August 1, 2007, the Board of Parole Hearings (Board)
On July 17, 2008,1 Petitioner filed a state habeas petition in
the Monterey County Superior Court.
(Resp't Ex. 1 at 1, 4.)
That
petition was transferred to the Alameda County Superior Court and
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was stamped as "FILED" in that court on September 9, 2008.
(Id. at
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1.)
In that petition, Petitioner alleged that the Board violated
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his due process rights by failing to give him two years of credit
when it denied him parole for five years on August 1, 2007.
at 3.)
(Id.
Petitioner claimed that the five-year denial was "illegal"
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and that his next scheduled parole suitability hearing should be in
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"August of 2010 instead of 2012" because the Board postponed it
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twice.
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(Id.)
On October 23, 2008, the Alameda County Superior Court denied
the petition for failure to state a prima facie case for relief,
1
A pro se federal or state habeas petition is deemed filed on
the date it is delivered to prison authorities for mailing. See
Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2001), vacated
and remanded on other grounds, Carey v. Saffold, 536 U.S. 214
(2002) (holding that a federal or state habeas petition is deemed
filed on the date the prisoner submits it to prison authorities for
mailing, rather than on the date it is received by the court).
July 17, 2008 is the date the state petition was signed and the
earliest date that the petition could have been delivered to prison
authorities for mailing. For the purposes of this discussion, the
Court deems that the petition was filed on that date.
2
1
stating:
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The petition for writ of habeas corpus ("the Petition")
filed on September 9, 2008 is DENIED for failure to
state a prima facie case for relief. Although
Petitioner has not provided the court with a complete
record (the transcript of the parole suitability hearing
was not attached to the Petition), Petitioner provides
sufficient documentation to allow the court's review of
the merits of the claim.
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(Resp't Ex. 2 at 1 (emphasis in original).)
On December 1, 2008, Petitioner filed a habeas petition in the
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California Court of Appeal, Sixth Appellate District.
The petition
United States District Court
For the Northern District of California
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was stamped as "FILED" by the Clerk of the Court in the Sixth
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District three days later, on December 4, 2008.2
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1.)
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refiling with the California Court of Appeal, First Appellate
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District, on December 9, 2008.
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refiled the petition in the First District on January 20, 2009.
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(Id. at 1.)
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2009.
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(Resp't Ex. 3 at
That petition was denied without prejudice and recommended for
(Id. at 26.)
Petitioner then
That petition was summarily denied on February 4,
(Resp't Ex. 4 at 1.)
On March 24, 2009, Petitioner filed a habeas petition in the
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California Supreme Court, and that petition was summarily denied on
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August 12, 2009.
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(Resp't Exs. 5, 6.)
On September 8, 2009,3 Petitioner filed the present federal
habeas petition, alleging the same due process violation raised in
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2
The stamped filing date on the appellate court petition
filed in the Sixth District is faded; therefore, this Court
obtained the filing date from the state court's official online
database.
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September 8, 2009 is the date the federal petition was
signed and the earliest date that it could have been delivered to
prison authorities for mailing; therefore, it will be deemed filed
on that date. See Saffold, 250 F.3d at 1268.
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his state habeas petitions.4
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DISCUSSION
I.
Timeliness
The Antiterrorism and Effective Death Penalty Act (AEDPA)
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became law on April 24, 1996 and imposed for the first time a
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statute of limitations on petitions for a writ of habeas corpus
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filed by state prisoners.
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non-capital state convictions or sentences must be filed within one
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United States District Court
For the Northern District of California
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Petitions filed by prisoners challenging
year of the latest date on which: (A) the judgment became final
after the conclusion of direct review or the time passed for
seeking direct review; (B) an impediment to filing an application
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created by unconstitutional state action was removed, if such
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action prevented the petitioner from filing; (C) the constitutional
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right asserted was recognized by the Supreme Court, if the right
was newly recognized by the Supreme Court and made retroactive to
cases on collateral review; or (D) the factual predicate of the
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claim could have been discovered through the exercise of due
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diligence.
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during which a properly filed application for State post-conviction
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or other collateral review with respect to the pertinent judgment
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or claim is pending shall not be counted toward any period of
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limitation."
28 U.S.C. § 2244(d)(1)(A)-(D).
However, "[t]he time
Id. § 2244(d)(2).
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Aside from stating his due process claim, the "Grounds for
Relief" section of his federal petition is blank. Instead,
Petitioner incorporates the supporting facts and authorities
relevant to his due process claim from his attached state supreme
court petition; therefore, in this Order the Court will cite to the
page numbers and exhibits from his attached state supreme court
petition.
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The one-year statute of limitations also applies to habeas
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petitions that challenge administrative decisions.
3
Circuit held in Shelby v. Bartlett, 391 F.3d 1061 (9th Cir. 2004),
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that section 2244's one-year time limit applies to all habeas
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petitions filed by persons in custody pursuant to a state court
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judgment.
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limitations period is determined by section 2244(d)(1)(D), which
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states that the limitations period begins to run on "the date on
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United States District Court
For the Northern District of California
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The Ninth
In cases challenging administrative decisions, the
which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence."
at 1066 (quoting 28 U.S.C. § 2244(d)(1)(D)).
Id.
For an administrative
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decision, such as those by the Board, this typically means the day
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following notice to the petitioner of the decision.
Id.; see also
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Redd v. McGrath, 343 F.3d 1077, 1084 (9th Cir. 2003).
In this case, the Board's denial became final on November 29,
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2007.
The limitations period began to run the following day, on
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November 30, 2007.
Accordingly, Petitioner was required to file
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his federal habeas petition no later than November 30, 2008.
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28 U.S.C. § 2244(d).
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2009 -- nearly one year after the limitations period had expired --
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is untimely absent statutory tolling.
See
Therefore, his petition filed on September 8,
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The present petition may nonetheless be timely if the
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limitations period was tolled under 28 U.S.C. § 2244(d)(2) for a
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substantial period of time.
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limitations period is tolled under § 2244(d)(2) for "[t]he time
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during which a properly filed application for state post-conviction
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or other collateral review with respect to the pertinent judgment
As noted earlier, AEDPA's one-year
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or claim is pending."
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period is also tolled during the time between a lower state court's
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decision and the filing of a notice of appeal to a higher state
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court.
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where prisoners generally use the state's original writ system,
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this means that the limitations period remains tolled during the
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intervals between a state court's disposition of an original state
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habeas petition and the filing of the next original state habeas
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United States District Court
For the Northern District of California
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28 U.S.C. § 2244(d)(2).
The limitations
Carey v. Saffold, 536 U.S. 214, 223 (2002).
In California,
petition in a higher court, provided the prisoner did not delay
unreasonably in seeking review in the higher court.
See id. at
220-25.
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Where a petitioner waits months to file a habeas petition in a
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higher court, a federal court must later determine whether the
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petitioner "delayed 'unreasonably'" in seeking higher state court
review.
Carey, 536 U.S. at 225.
If a petitioner delayed
unreasonably, the application would no longer have been "pending"
Id.
If the state court does not
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during the period at issue.
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clearly rule on a petitioner's delay, as in the present case, the
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federal court must evaluate all "relevant considerations" and
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independently determine whether the delay was "unreasonable."
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at 226.
Id.
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The Supreme Court held that a determination of unreasonable
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delay is particularly difficult to make in California: "The fact
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that California's timeliness standard is general rather than
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precise may make it more difficult for federal courts to determine
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just when a review application . . . comes too late."
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The Supreme Court held, however, that California's appellate system
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Id. at 223.
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could be treated similarly to those in other states, which measure
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delays "in terms of a determinate time period, such as 30 or 60
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days."
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"California's 'reasonable time' standard [should] not lead to
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filing delays substantially longer than those in States with
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determinate timeliness rules."
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at 222-23).
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thirty or sixty day periods provided by states with determinate
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United States District Court
For the Northern District of California
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Evans v. Chavis, 546 U.S. 189, 192 (2006).
In other words,
Id. at 200 (citing Carey, 536 U.S.
Based on the Supreme Court's reference to the usual
deadlines, a delay of sixty days would likely be reasonable.
On
the other hand, a longer delay of six months would likely be
unreasonable: "Six months is far longer than the 'short period[s]
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of time,' 30 to 60 days, that most States provide for filing an
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appeal to the state supreme court."
Id. at 201.
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The language in Evans referred to above -- that most states
find thirty to sixty days to be reasonable -- seems to imply that
delays are reasonable only if they are roughly between thirty to
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sixty days.
More conclusive is the Supreme Court's statement that
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in determining whether a delay is reasonable "the [Ninth] Circuit
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must keep in mind that, in Saffold, we held that timely filings in
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California fell within the federal tolling provision on the
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assumption that California law in this respect did not differ
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significantly from the laws of other states, i.e., that
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California's 'reasonable time' standard would not lead to filing
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delays substantially longer than those in States with determinate
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timeliness rules."
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U.S. at 222-23).
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if, in this respect, we were wrong."
Evans, 546 U.S. at 199-200 (citing Carey, 536
"California, of course, remains free to tell us
7
Evans, 546 U.S. at 200.
1
Respondent argues that Petitioner filed his state superior
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court petition 284 days after the Board's decision became final.
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Respondent's calculation considers the filing date as September 9,
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2008, the date the superior court petition was received in the
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Alameda County Superior Court, instead of the date that the
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petition was filed in the Monterey County Superior Court.
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United States District Court
For the Northern District of California
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Respondent also argues that the eighty-nine day gap between
the superior court's denial and Petitioner filing his appellate
court petition in the First District was a period of "unreasonable
delay" and that the limitations period should not be tolled for
that period.
Respondent's calculation of an eighty-nine day gap
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does not credit the date that Petitioner's appellate petition was
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filed in the wrong appellate district.
However, as noted above,
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the Court finds it unnecessary to rule on Respondent's request to
dismiss the federal petition as untimely because the petition fails
on the merits.
II.
The Merits of the Petition
Petitioner's due process claim arises out of the 2005 and 2006
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postponements of his parole hearings.
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claims that he "does not contest the five-year denial, which the
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Board was entitled to do, so long as it gave Petitioner credit for
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it's [sic] two years of postponements . . . which would schedule
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Petitioner['s] next parole hearing for 2010 instead of 2012."
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(Pet. at 3.)
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A.
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A federal court may entertain a habeas petition from a state
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Specifically, Petitioner
Legal Standard
prisoner "only on the ground that he is in custody in violation of
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1
the Constitution or laws or treaties of the United States."
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U.S.C. § 2254(a).
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habeas relief unless the state court's adjudication of the claim:
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"(1) resulted in a decision that was contrary to, or involved an
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unreasonable application of, clearly established Federal law, as
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determined by the Supreme Court of the United States; or
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(2) resulted in a decision that was based on an unreasonable
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determination of the facts in light of the evidence presented in
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United States District Court
For the Northern District of California
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28
Under AEDPA, a district court may not grant
the State court proceeding."
28 U.S.C. § 2254(d); Williams v.
Taylor, 529 U.S. 362, 412 (2000).
The first prong applies both to
questions of law and to mixed questions of law and fact, id. at
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407-09, and the second prong applies to decisions based on factual
13
determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
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A state court decision is "contrary to" Supreme Court
authority, that is, falls under the first clause of § 2254(d)(1),
only if the "state court arrives at a conclusion opposite to that
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reached by [the Supreme] Court on a question of law or if the state
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court decides a case differently than [the Supreme] Court has on a
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set of materially indistinguishable facts."
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412-13.
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Supreme Court authority, under the second clause of § 2254(d)(1),
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if it correctly identifies the governing legal principle from the
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Supreme Court's decisions but "unreasonably applies that principle
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to the facts of the prisoner's case."
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court on habeas review may not issue the writ "simply because that
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court concludes in its independent judgment that the relevant
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state-court decision applied clearly established federal law
Williams, 529 U.S. at
A state court decision is an "unreasonable application of"
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Id. at 413.
The federal
1
erroneously or incorrectly."
2
must be "objectively unreasonable" to support granting the writ.
3
Id. at 409.
4
Id. at 411.
Rather, the application
When there is no reasoned opinion from the highest state court
5
to consider the petitioner's claims, the court looks to the last
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reasoned opinion of the highest court to analyze whether the state
7
judgment was erroneous under the standard of § 2254(d).
8
Nunnemaker, 501 U.S. 797, 801-06 (1991).
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United States District Court
For the Northern District of California
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11
Ylst v.
In the present case, the
Alameda County Superior Court is the highest court that addressed
Petitioner's due process claim.
B.
Analysis
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The state superior court found, after reviewing the merits of
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his due process claim, that Petitioner "fail[ed] to state a prima
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facie case for relief."
(Resp't Ex. 2 at 1.)
That court's
decision denying Petitioner's claim was based on a legal
determination concerning the sufficiency of his legal claim, not on
any factual determinations.
In his federal petition, Petitioner states, "All postponements
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were due to deficiency caused by Respondent actions and/or lack of
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process[es] due."
22
2253 of Title 15 of the California Code of Regulations, which
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authorizes the Board to postpone subsequent parole suitability
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hearings, provides, in pertinent part:
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(Pet. at 3 (alteration in original).)
Section
(a) General. The rights and interests of all persons
properly appearing before a board life parole
consideration hearing are best served when hearings are
conducted as scheduled. Occasional circumstances may
require the delay of a scheduled hearing. It is the
intention of the board to recognize the need and
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2
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desirability to occasionally delay a scheduled hearing
and to authorize said delays through a process of
voluntary waiver or stipulation of unsuitability or to
postpone or continue a scheduled life parole
consideration hearing.
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Cal. Code Regs. tit. 15, § 2253(a).
5
contends the Board improperly delayed his parole suitability
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hearings in violation of state law, he asserts no cognizable claim
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for federal habeas relief.
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67-68 (1991).
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United States District Court
For the Northern District of California
10
11
To the extent Petitioner
See Estelle v. McGuire, 502 U.S. 62,
To show a constitutional violation, Petitioner must prove that
any alleged delay was both unreasonable and prejudicial.
See
United States v. Santana, 526 F.3d 1257, 1260 (9th Cir. 2008);
12
Meador v. Knowles, 990 F.2d 503, 506 (9th Cir. 1993); Camacho v.
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White, 918 F.2d 74, 79 (9th Cir. 1990); Hopper v. United States
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Parole Comm'n, 702 F.2d 842, 845 (9th Cir. 1983).
The Court need
not determine whether the delay was unreasonable, because
Petitioner has failed to demonstrate any non-speculative
possibility of prejudice.
First, the Board did not abrogate Petitioner's future right to
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parole hearings, or even deny them indefinitely but rather
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postponed his scheduled parole hearing on two occasions.
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record shows that Petitioner was informed in writing about the 2005
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and 2006 postponements, and he was advised that a new hearing would
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be scheduled.
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hearing eventually took place on August 1, 2007, and he was
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afforded an opportunity to be heard in accordance with due process
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before he was denied parole.
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suggesting that the delays in 2005 and 2006 affected the merits of
(Pet., Exs. A, B.)
The
Petitioner's parole suitability
Petitioner alleges no facts remotely
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1
the Board's August 1, 2007 decision deeming him unsuitable for
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parole.
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standards for determining suitability.
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Nothing indicates the delays had any effect on the
Second, Petitioner claims that the Board should have given him
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"credit for it's [sic] two years of postponements."
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As mentioned above, Petitioner argues that he should have received
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a three-year denial instead of a five-year denial.
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be arguing that the repeated delays in scheduling his parole
9
United States District Court
For the Northern District of California
10
11
(Pet. at 3.)
Petitioner may
hearing have resulted in additional time for which no credit will
ever be applied, thereby violating due process.
argument is unavailing.
However, his
Even if, at some future hearing, the Board
12
were to find Petitioner suitable for parole, his ultimate release
13
date would not be fixed by reference to the hearing date, but
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rather would be a product of the Board's discretion, taking into
account the "matrix" of suggested base terms set forth in state
prison regulations, circumstances in aggravation and mitigation,
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and adjustments for enhancements or other offenses, and reduced by
19
any post-conviction credit awarded by the Board.
20
Regs. tit. 15, §§ 2403-2411.
21
alleged delays might cause some future suitability determination to
22
occur later than it otherwise would have occurred is far too
23
speculative to show the requisite prejudice.
24
of Corrections v. Morales, 514 U.S. 499, 509 (2000) (rejecting Ex
25
Post Facto challenge to amendment decreasing frequency of
26
California parole suitability hearings; amendment "create[d] only
27
the most speculative and attenuated possibility of producing the
28
prohibited effect of increasing the measure of punishment for
See Cal. Code
Petitioner's suggestion that the
12
See California Dep't
1
covered crimes").
2
cause the actual release date (following some future suitability
3
finding or future grant of habeas relief) to occur later than it
4
otherwise would have occurred is even more speculative.
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due process violation occurred because Petitioner has failed to
6
show any prejudice from the alleged delays in 2005 and 2006.
7
follows that the state courts' rejection of Petitioner's due
8
process claim was not contrary to, or an objectively unreasonable
9
United States District Court
For the Northern District of California
10
11
Moreover, any suggestion that the delay might
Thus, no
It
application of, any clearly established Federal law as determined
by the United States Supreme Court.
See 28 U.S.C. § 2254(d).
Therefore, Petitioner is not entitled to habeas relief.
12
Accordingly, the Court GRANTS Respondent's request to deny the
13
petition on the merits; the petition is DENIED.
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CONCLUSION
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For the foregoing reasons, the Court orders as follows:
1.
The Court does not rule on Respondent's request to
dismiss the petition as untimely.
2.
Respondent's alternative request to deny the petition on
20
the merits is GRANTED, and the petition for a writ of habeas corpus
21
is DENIED.
22
3.
A certificate of appealability is DENIED.
Reasonable
23
jurists would not "find the district court's assessment of the
24
constitutional claims debatable or wrong."
25
U.S. 473, 484 (2000).
26
appealability from the Ninth Circuit Court of Appeals.
27
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4.
Slack v. McDaniel, 529
Petitioner may seek a certificate of
The Clerk of the Court shall enter judgment in favor of
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Respondent and close the file.
IT IS SO ORDERED.
Dated: 3/14/2012
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CLAUDIA WILKEN
United States District Judge
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United States District Court
For the Northern District of California
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