Gaston v. Hedgepeth

Filing 18

ORDER by Judge Lucy H. Koh granting 13 Motion to Dismiss ; FURTHER SCHEDULING (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 11/9/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ANTHONY GASTON,
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Petitioner,
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v.
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ANTHONY HEDGEPETH, Warden,
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Respondent.
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No. C 10-4068 LHK (PR)
ORDER GRANTING
RESPONDENT’S MOTION TO
DISMISS; FURTHER
SCHEDULING

(Docket No. 13)

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Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus
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pursuant to 28 U.S.C. § 2254, challenging two administrative decisions by the California
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Department of Corrections and Rehabilitation. The Court ordered Respondent to show cause
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why the petition should not be granted. Respondent filed a motion to dismiss the petition as
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procedurally defaulted, and, as untimely. Petitioner filed a traverse, which the Court construes
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as an opposition. Respondent filed a reply brief. Based upon the papers submitted, the Court
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DISMISSES Claim 1, and issues an order to show cause as to Claim 2.
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BACKGROUND
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In 1994, Petitioner was convicted in Los Angeles County Superior Court for murder.
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(MTD, Ex. 4 at 2.) He was sentenced to twenty-nine years to life. (Id.)
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While incarcerated at Kern Valley State Prison, prison officials issued a rule violation
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Order Granting Respondent’s Motion to Dismiss; Further Scheduling
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report to Petitioner for arson, stating that, on December 15, 2005, he had set his cell on fire.

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(Pet., Ex. 1 at 24.) At a hearing on March 3, 2006, Petitioner was found guilty of arson (cell

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fire). (Id. at 30.) Petitioner filed an administrative appeal challenging the hearing process.

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(MTD, Ex. 1.) On June 19, 2006, prison officials denied Petitioner’s appeal at the second level

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of review. (MTD, Ex. 2.) Petitioner did not appeal this denial to the Director’s Level of review.

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However, on October 3, 2007, Petitioner filed a new appeal, challenging the finding of guilt for

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committing arson, and alleging that he never received the denial at the second level of review.

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(Pet., Ex. 4 at 116.) That appeal was denied as untimely. (Id. at 118.)

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On August 12, 2008, Petitioner filed a state habeas petition in superior court. (MTD, Ex.

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4 at 121.) See Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2000) (holding that a federal or

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state habeas petition is deemed filed on the date the prisoner submits it to prison authorities for

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filing, rather than the date it is received by the courts), vacated and remanded on other grounds,

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Carey v. Saffold, 536 U.S. 214 (2002). On October 22, 2008, the superior court denied the

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petition in a reasoned opinion. (Pet., Ex. 7 at 137-39.) Petitioner’s subsequent state habeas

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petition in the California Court of Appeal was summarily denied on December 18, 2008. (Id.,

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Ex. 8.) Petitioner’s state habeas petition in the California Supreme Court was also summarily

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denied on April 22, 2009. (Id., Ex. 9.)

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Petitioner filed the instant federal habeas petition on August 18, 2010. See Houston v.

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Lack, 487 U.S. 266, 276 (1988). In Claim 1 of his petition, Petitioner claims that the evidence

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was insufficient to find him guilty of arson, and violated his right to due process, because the

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hearing officer failed to consider Petitioner’s mental health status at the time of the incident, as

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required by California law. (Pet. at 9-11.)

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DISCUSSION
I.

Motion to Dismiss
Respondent argues that Petitioner is precluded from obtaining federal habeas relief

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because the California Supreme Court denied Petitioner relief based on a state procedural rule

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requiring administrative exhaustion. (MTD at 4-5.) Respondent also asserts that the claim is

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untimely. (Id. at 5-9.) In opposition, Petitioner does not contest that his claim was denied
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pursuant to an independent and adequate state procedural rule, but instead, argues that he should

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be excused from procedural default because he can demonstrate cause and prejudice. (Opp. at 6-

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10.) Petitioner further asserts that, although he did not file his petition within the one-year

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statute of limitations, he should receive equitable tolling. (Id. at 10-12.)

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A.

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A federal court will not review questions of federal law decided by a state court if the

Procedural Default

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decision also rests on a state law ground that is independent of the federal question, and adequate

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to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). In those cases in

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which the state court decision is based on an independent and adequate state procedural rule,

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federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the

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default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that

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failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 750.

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Here, the California Supreme Court summarily denied Petitioner’s state habeas petition

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with a citation to In re Dexter, 25 Cal. 3d 921 (1979). (Pet., Ex. 9.) Dexter stands for the

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proposition that a state habeas petitioner “will not be afforded judicial relief unless he has

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exhausted state administrative remedies.” Id. at 925.

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The state procedural rule of Dexter is independent of federal law. Petitioner does not

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argue otherwise. The only reason the California Supreme Court gave for rejecting Petitioner’s

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state petition was a failure to exhaust administrative remedies. The ruling was in no way on the

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merits, or intertwined with a decision on the merits. As to adequacy, the state has pleaded the

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existence of a procedural bar, thereby shifting the burden to Petitioner to come forward with

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specific factual allegations and citations to authority to demonstrate that the rule is not

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consistently enforced. See Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). Petitioner

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has not attempted to do so.

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The California Supreme Court’s citation to Dexter is thus independent and adequate to

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bar Petitioner’s claim from federal habeas review. Petitioner contends, however, that the

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California Supreme Court was in error in dismissing the petition for failure to exhaust

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administrative remedies, because he did exhaust, or at least did all he could to try to exhaust.
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Petitioner’s argument that the California Supreme Court erred in concluding that he had not

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exhausted is not grounds for avoiding the bar. “A basic tenant of federal habeas review is that a

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federal court does not have license to question a state court’s finding of procedural default, if

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based upon an adequate and independent state ground.” Barnes v. Thompson, 58 F.3d 971, 974

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n.2 (4th Cir. 1995). Because the California courts are the final expositors of California law, the

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California Supreme Court’s conclusion that the state’s exhaustion rule was not satisfied is

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binding here. See Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) (federal courts lack

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jurisdiction to review state court applications of procedural rules; refusing to review state court’s

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finding of procedural default).

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Petitioner attempts to demonstrate “cause and prejudice” to excuse his default. He claims

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that he never received notice that his administrative appeal at the second level of review was

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denied. Indeed, asserts Petitioner, the only document he initially received regarding the

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resolution of his appeal at the second level of review indicated that his appeal was granted. (Pet.

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at 2-3.) Petitioner states that he first learned of the denial on October 2, 2007, and he filed an

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administrative appeal the next day, in an attempt to rectify the situation. (Id.; Opp. at 2-3, 7-8.)

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In essence, Petitioner argues that because he was given notice that his appeal at the second level

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of review was granted, but did not receive the written decision denying his appeal, he had no

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reason to continue exhausting his administrative remedies.

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The “cause” standard requires a petitioner to show that “‘some objective factor external

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to the defense impeded . . . efforts’ to construct or raise the claim.” McCleskey v. Zant, 499 U.S.

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467, 493 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Objective factors that

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constitute cause include interference by officials that makes compliance with the state’s

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procedural rule impracticable, and a showing that the factual or legal basis for a claim was not

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reasonably available. See McCleskey, 499 U.S. at 493-94.

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Even assuming that Petitioner has sufficiently demonstrated cause for the default, he fails

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to show actual prejudice as a result of the alleged federal law violation. See id. at 494; United

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States v. Frady, 456 U.S. 152, 168 (1982). Petitioner bears the burden of showing, not merely

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that the error created a possibility of prejudice, but that it “worked to his actual and substantial
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disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 170

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(emphasis in original).

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Here, Petitioner claims that the Senior Hearing Officer (“SHO”) presiding over his rule

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violation hearing failed to take into consideration Petitioner’s mental health assessment at the

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time he set his cell on fire. (Pet. at 9-10.) Petitioner alleges that the SHO should have realized

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that Petitioner was attempting suicide, and therefore, the SHO should not have held Petitioner to

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the same standard as a sane person. (Id.) California Code of Regulations § 3317 states, in part,

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that all inmates who receive a rule violation report, and who “exhibit[] bizarre, unusual or

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uncharacteristic behavior at the time of the rules violation shall be referred for a Mental Health

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Assessment.” Cal. Code Regs., tit. 15, § 3317. Section 3317 continues, “An inmate shall be

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referred for a mental health evaluation prior to documenting misbehavior . . . in any case where

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the inmate is suspected of self mutilation or attempted suicide.” Id. If the mental health

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evaluator determines that it was an actual suicide attempt, the regulation mandates that a rule

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violation report not issue. (Id.)

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In Superintendent v. Hill, 472 U.S. 445, 454 (1985), the Court held that the revocation of

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good-time credits does not comport with the minimum requirements of procedural due process

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unless the findings of the prison disciplinary board are supported by some evidence in the record.

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The standard for the modicum of evidence required is met if there was some evidence from

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which the conclusion of the administrative tribunal could be deduced. See id. at 455. An

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examination of the entire record is not required nor is an independent assessment of the

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credibility of witnesses or weighing of the evidence. See id. The relevant question is whether

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there is any evidence in the record that could support the conclusion reached by the disciplinary

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board. See id. The Due Process Clause only requires that prisoners be afforded those procedures

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mandated by Wolff v. McDonnell, 418 U.S. 539 (1974), and its progeny; it does not require that

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prisons comply with its own, more generous procedures. See Walker v. Sumner, 14 F.3d 1415,

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1419-20 (9th Cir. 1994). Here, prejudice ensues, if there was not “some evidence” at the hearing

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to support a guilty finding of arson.

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The underlying record shows that Correctional Officer Trullinger responded to a code
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alarm and saw fire and smoke coming out of Petitioner’s single occupancy cell. (Pet., Ex. 1 at

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27.) After officers put out the fire, they found Petitioner in his cell, slouched over in his

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wheelchair. (Id.) The incident report also noted that a lighter was found and confiscated from

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the lower bunk. (Pet., Ex. 1 at 99-100.) Petitioner was afforded a mental health assessment,

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which concluded that Petitioner was experiencing auditory hallucinations and paranoia at the

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time of the incident. (Pet., Ex. 1 at 28.) The mental health assessment also opined that

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Petitioner was not aware of reality at the time of the incident. (Id.) The assessment did not

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determine that the incident resulted from an actual suicide attempt. (Id.) A review of the

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evidence demonstrates that the finding of guilt is sufficiently supported by “some evidence”.

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See, e.g., Hill, 472 U.S. at 456-57 (finding some evidence to support guilty finding for two

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prisoners when evidence showed that a guard witnessed one inmate, who had just been assaulted,

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and three other inmates fleeing from the scene).

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Thus, Petitioner fails to show actual prejudice resulting from his claim that there was

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insufficient evidence to support a guilty finding of arson. Accordingly, even assuming that

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Petitioner demonstrated cause, he cannot show prejudice, and therefore, Petitioner cannot

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overcome the procedural default of his claim.1

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B.

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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a

Statute of Limitations

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statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions

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filed by prisoners challenging non-capital state convictions or sentences must be filed within one

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year of the latest of the date on which: (1) the judgment became final after the conclusion of

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direct review or the time passed for seeking direct review; (2) an impediment to filing an

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application created by unconstitutional state action was removed, if such action prevented

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petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court,

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if the right was newly recognized by the Supreme Court and made retroactive to cases on

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Because Petitioner does not argue that a “failure to consider the claims will result in a
fundamental miscarriage of justice,” Coleman, 501 U.S. at 750, he cannot overcome the
procedural default through this exception.
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collateral review; or (4) the factual predicate of the claim could have been discovered through

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the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during which a properly filed

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application for state post-conviction or other collateral review is pending is excluded from the

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one-year time limit. 28 U.S.C. § 2244(d)(2).

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Section 2244’s one-year limitation period applies to all habeas petitions filed by persons

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in “custody pursuant to the judgment of a State court,” even if the petition challenges a pertinent

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administrative decision rather than a state court judgment. Shelby v. Bartlett, 391 F.3d 1061,

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1063 (9th Cir. 2004) (quoting 28 U.S.C. § 2244(d)(1)). For prisoners challenging administrative

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decisions, Section 2244(d)(1)(D) applies, and the one-year limitations period begins to run on

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the date the administrative decision becomes final. See id. at 1066 (limitation period began to

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run the day after petitioner received timely notice of the denial of his administrative appeal

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challenging disciplinary decision). The “factual predicate” of the habeas claims is the

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administrative appeal board’s denial of the administrative appeal. See Redd v. McGrath, 343

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F.3d 1077, 1082 (9th Cir. 2003).

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Here, giving Petitioner the benefit of the doubt, the date upon which Petitioner learned of

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the factual predicate of his claim is the date Petitioner learned that his administrative appeal at

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the second level of review was denied, i.e., on October 2, 2007. (Opp. at 11.) Therefore, the

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limitations period began running on October 3, 2007. See Shelby, 391 F.3d at 1066. Thus,

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Petitioner had until October 2, 2008 to file his federal habeas petition. See Patterson v. Stewart,

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251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner filed his federal habeas petition on August 18,

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2010. Thus, absent tolling, Petitioner’s claim is untimely.

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1.

Statutory Tolling

The one-year statute of limitations is tolled under Section 2244(d)(2) for the “time during

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which a properly filed application for state post-conviction or other collateral review with

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respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). Between

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October 2, 2007 – the date Petitioner learned of the denial of his appeal at the second level over

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review – and August 12, 2008 – the date he filed his state habeas petition in superior court, 314

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days had passed. (MTD, Ex. 4 at 121.) Assuming that Petitioner is entitled to statutory tolling
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while exhausting state court remedies, the statute was tolled through April 22, 2009, the date the

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California Supreme Court denied his state habeas petition. (Pet., Ex. 9.) The statute of

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limitations began running again the following day, on April 23, 2009. Petitioner than had 52

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days (366 days minus 314 days) from April 23, 2009, to file his federal petition. See United

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States v. Tawab, 984 F.2d 1533, 1534 (9th Cir. 1993) (“year” under federal rules includes 366

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days during leap year, not 365 days). In other words, Petitioner had to have filed his federal

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petition on or before June 13, 2009. However, Petitioner, did not commence this action until

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August 18, 2010 – over one year past the statute of limitations deadline. Because statutory

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tolling does not render the petition timely, the Court must decide whether equitable tolling saves

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the petition.

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2.

Equitable Tolling

Petitioner argues that he is entitled to equitable tolling because (1) he was on suicide

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watch from September 2006 through December 2006, and does not remember appearing at an

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ICC hearing in January 2007 in which his rule violation for arson was discussed, and (2) from

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December 7, 2009 through June 23, 2010,2 Petitioner was transferred to three different

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institutions and was without his legal property. (Opp. at 5-6, 10-11.)

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Petitioner does not meet his burden of demonstrating that a basis for equitable tolling

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exists. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). The Supreme Court has

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determined that Section 2244(d) is subject to equitable tolling in appropriate cases. Holland v.

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Florida, 130 S. Ct. 2549, 2560 (2010). “[A] ‘petitioner’ is ‘entitled to equitable tolling’ only if

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he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

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circumstance stood in his way’ and prevented timely filing.” Id. at 2562. The prisoner also must

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show that “the extraordinary circumstances were the cause of his untimeliness and that the

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extraordinary circumstances made it impossible to file a petition on time.” Ramirez v. Yates, 571

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F.3d 993, 997 (9th Cir. 2009) (internal quotation marks and citations omitted). Where a prisoner

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In Petitioner’s opposition, he states that he did not receive his “personal” property until
June or July 2010. (Opp. at 5-6.) In the petition, he specifies that he received his property on
June 23, 2010. (Pet. at 4-5.)
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fails to show “any causal connection” between the grounds upon which he asserts a right to

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equitable tolling and his inability to timely file a federal habeas application, the equitable tolling

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claim will be denied. Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005).

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Regarding Petitioner’s argument for equitable tolling between September 2006 through,

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at the latest, January 2007, he is not entitled to equitable tolling. In calculating Petitioner’s

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statute of limitations, this Court is giving him the benefit of the doubt as to when the statute of

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limitations began to run, i.e., October 3, 2007. Thus, the assertion that Petitioner was on suicide

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watch in the later portion of 2006 through January 2007 has no relevance to Petitioner’s inability

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to file his federal habeas petition on time because that time period pre-dates the commencement

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of Petitioner’s statute of limitations. Cf. Gaston, 417 F.3d at 1034-35.
Regarding Petitioner’s second argument for equitable tolling, although a petitioner may

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be entitled to tolling if he is denied access to legal papers despite his repeated requests for them,

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see, e.g,, Espinoza-Matthews v. California, 432 F.3d 1021, 1027-28 (9th Cir. 2005); Lott v.

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Mueller, 304 F.3d 918, 924-25 (9th Cir. 2002), Petitioner’s situation is different. First, Petitioner

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has not attempted to demonstrate a causal connection between his need for his legal property,

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and his inability to file his federal petition on time. See Waldron-Ramsey v. Pacholke, 556 F.3d

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1008, 1013-14 (9th Cir. 2009) (affirming the denial of equitable tolling, and stating, “[Petitioner]

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does not point to specific instances where he needed a particular document, could not have kept

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that document within his permitted three boxes had he been cooperative, and could not have

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procured that particular document when needed”). Second, Petitioner clearly was not prevented

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from filing a timely federal habeas petition due to not having his legal materials because he filed

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a federal habeas petition without his materials, in which he raised the same underlying claim in

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Gaston v. Harrington, No. 09-1025 (OWW) (E.D. Cal., filed June 11, 2009). See Ford v. Pliler,

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590 F.3d 782, 790 (9th Cir. 2009) (affirming district court’s determination that petitioner was not

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entitled to equitable tolling based on lack of access to his legal files because the record showed

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petitioner was aware of the factual basis for his claims without the files). Because Petitioner

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fails to show what extraordinary circumstances prevented him from filing a timely federal

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petition, he is not entitled to equitable tolling.
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Finally, even if the Court equitably tolled the statute from December 7, 2009 through

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June 23, 2010, that would only toll the statute for an additional six and a half months, still

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rendering his claim untimely by over six months. Accordingly, the claim is untimely.

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II.

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Order to Show Cause
In the Court’s February 27, 2011 order to show cause, the Court inadvertently omitted

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Petitioner’s second claim. In his petition, Petitioner alleged: (1) his 2005 rule violation for

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arson violated his right to due process because it was not supported by sufficient evidence, and

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(2) his 2008 rule violation for indecent exposure violated his right to due process because it was

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not supported by sufficient evidence. Because no party has addressed Claim 2 in this motion to

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dismiss, the Court will issue a second order to show cause. Liberally construed, Claim 2 is

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cognizable on federal habeas review. The Court orders Respondent to show cause why the

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petition should not be granted as to the above issue. See Zichko v. Idaho, 247 F.3d 1015, 1020

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(9th Cir. 2001) (federal courts must construe pro se petitions for writs of habeas corpus

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liberally).

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CONCLUSION

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For the foregoing reasons, the Court orders that:

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1.

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Respondent’s motion to dismiss is GRANTED. Claim 1 is DISMISSED as

procedurally barred, and untimely.
2.

The Clerk shall serve by mail a copy of this order and the petition (docket no. 1)

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and all attachments thereto upon the Attorney General of the State of California. The Clerk shall

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also serve a copy of this order on Petitioner.

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3.

Respondent shall file with the Court and serve on Petitioner, within sixty days of

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the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted.

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Respondent shall file with the answer and serve on Petitioner a copy of all portions of the

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underlying state criminal record that have been transcribed previously and that are relevant to a

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determination of the issues presented by the petition.

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If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
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Court and serving it on Respondent within thirty days of the date the answer is filed.

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4.

Respondent may file a motion to dismiss on procedural grounds in lieu of an

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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section

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2254 Cases within sixty days of the date this order is filed. If Respondent files such a motion,

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Petitioner shall file with the Court and serve on Respondent an opposition or statement of non-

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opposition within thirty days of the date the motion is filed, and Respondent shall file with the

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Court and serve on Petitioner a reply within fifteen days of the date any opposition is filed.

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5.

It is Petitioner’s responsibility to prosecute this case. Petitioner is reminded that

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all communications with the Court must be served on Respondent by mailing a true copy of the

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document to Respondent’s counsel. Petitioner must keep the Court and all parties informed of

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any change of address by filing a separate paper captioned “Notice of Change of Address.” He

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must comply with the Court’s orders in a timely fashion. Failure to do so may result in the

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dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure

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41(b).

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IT IS SO ORDERED.
DATED:

11/4/11
LUCY H. KOH
United States District Judge

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