Scalf v. Salazar

Filing 10

ORDER denying Respondent's 6 Motion to Dismiss; adopting 9 Report and Recommendation; Respondent shall file and serve an answer to the petition, as well as points and authorities in support of such answer, no later then April 2, 2010. Along with the answer, Respondent shall lodge with the Court all records bearing on the merits of Petitioners claims; Petitioner may file a traverse to matters raised in the answer no later then May 3, 2010; Signed by Judge Marilyn L. Huff on 3/2/10. (All non-registered users served via U.S. Mail Service)(kaj)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-109cv1676

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
FRED ROBERT SCALF, III, vs. JOHN F. SALAZAR, Warden, Respondent. On August 3, 2009, Fred Robert Scalf, III, ("Petitioner"), a state prisoner proceeding pro se, filed a petitioner for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On November 6, 2009, Respondent filed a motion to dismiss the petition as untimely. (Doc. No. 6-1 at 3.) On December 9, 2009, Petitioner filed a response. (Doc. No. 8.) On February 10, 2010, the magistrate judge issued a report and recommendation advising denial of Respondent's motion to dismiss. (Doc. No. 9 at 4.) The Court set a date for any objections to the report and recommendation to be filed no later then February 24, 2010. (Doc. No. 9 at 4.) The Court has received no objections to the report and recommendation. For the reasons discussed below, the Court adopts the report and recommendation and denies Respondent's motion to dismiss. //// //// Petitioner, CASE NO. 09-cv-1676-H (AJB) ORDER DENYING RESPONDENT'S MOTION TO DISMISS

1 2

BACKGROUND Petitioner pled guilty to two counts of lewd conduct with a minor under the age of

3 fourteen in violation of California Penal Code section 288(a). (Doc. No. 1 at 2.) Petitioner 4 was sentenced to eight years in prison. (Doc. No. 1 at 2.) Petitioner appealed the conviction 5 claiming the sentencing court abused its discretion by denying his request for probation. 6 (Lodg. 1.) On May 18, 2007, the California Court of Appeal, Division One, denied the appeal. 7 (Lodg. 1.) Petitioner did not file a petition for review with the California Supreme Court. 8 On May 14, 2008, Petitioner signed a petition for a writ of habeas corpus and filed it

9 with the San Diego County Superior Court on May 23, 2008. (Lodg. 2.) On July 15, 2008, 10 the court denied the petition. (Lodg. 3.) On September 2, 2008, Petitioner filed a petition for 11 writ of habeas corpus in the California Court of Appeal. (Lodg. 4.) On October 16, 2008, the 12 court of appeal denied the petition. (Lodg. 5.) On December 3, 2008, Petitioner filed a 13 petition with the California Supreme Court. (Lodg. 6.) On June 10, 2009, the California 14 Supreme Court denied the petition. (Lodg. 7.) On July 24, 2009, Petitioner signed a petition 15 for writ of habeas corpus and filed it with this Court on August 3, 2009. (Doc. No. 1.) 16 17 DISCUSSION The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs all habeas

18 corpus petitions filed after April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). 19 AEDPA provides a one year limitation period for state prisoners to file habeas corpus 20 petitioners in federal court. 28 U.S.C. § 2244(d)(1) (2006). The limitation period begins 21 running from the latest date of final judgment based on either the conclusion of direct review 22 or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A) (2006). The 23 California Supreme Court's denial of a habeas petition is not final until thirty days after it is 24 filed. Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir. 2001). The limitation period is not 25 counted during the time a properly filed application for state post-conviction or other collateral 26 review with respect to the pertinent judgement or claim is pending. 28 U.S.C. § 2244(d)(2) 27 (2006). An application is "pending" during the intervals between a lower court's denial of a 28 habeas petition and Petitioner's filing of appeal with a higher court if the filing is timely under
-209cv1676

1 state law. Evans v. Chavis, 546 U.S. 189, 191 (2006). California requires petitions to be filed 2 in a "reasonable time." Evans v. Chavis, 546 U.S. 189, 192 (2006). Thirty to sixty days is 3 assumed to be a reasonable time until the California Supreme Court states otherwise. Evans 4 v. Chavis, 546 U.S. 189, 201 (2006); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). 5 Under the "prison mailbox rule," a prisoner's federal habeas corpus petition is deemed filed 6 when he hands it over to prison authorities for mailing to the district court. Houston v. Lack, 7 487 U.S. 266, 270 (1988); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001).1 8 Here, Petitioner's habeas petition is timely because it was filed three hundred and thirty

9 four (334) days after the limitations period began to run. Bunney, 262 F.3d at 974; Huizar, 273 10 F.3d at 1222. On June 28, 2007, Petitioner's conviction became final because the time for 11 filing a petition for review expired. 28 U.S.C. § 2244(d)(1)(A). (Lodg. 1.) On June 29, 2007, 12 the limitation period began running. See Fed. R. Civ. P. 6(a)(1). On May 14, 2008, the 13 limitation period was tolled because Petitioner signed his habeas petition for review with the 14 San Diego County Superior Court. Huizar, 273 F.3d at 1222. (Lodg. 2.) At this point, the 15 limitation period had run for three hundred and twenty (320) days. Petitioner then filed habeas 16 petitions with appellate California courts within sixty days of each denial he received. (Lodg. 17 3-7.) On July 10, 2009, the California Supreme Court's denial of Petitioner's habeas petition 18 became final. Bunney, 262 F.3d at 974. (Lodg. 7.) Accordingly, Petitioner's case was 19 "pending" from May 14, 2008 until July 10, 2009, and the limitation period was tolled during 20 this time period. Chaffer, 592 F.3d at 1048. On July 24, 2009, Petitioner signed his federal 21 petition and it was filed with this Court on August 3, 2009. (Doc. No. 1.) Fourteen (14) days 22 passed between the final ruling of the California Supreme Court and the filing of this petition. 23 Therefore, the limitation period was running for three hundred and thirty four (334) days. 24 Accordingly, the Court finds Petitioner's petition was timely and in compliance with the 25 limitation period of AEDPA. 28 U.S.C. § 2244(d) (2006). 26 27 Respondent states Petitioner constructively filed his petitions by signing them. (Doc. No. 6-1 at 1, n. 1.) The Court agrees and uses the signing date on Petitioner's petitions for 28 determining application of the mailbox rule.
-309cv1676
1

1 2

CONCLUSION For the reasons stated above, the Court adopts the report and recommendation and

3 denies Respondent's motion to dismiss. The Court further orders: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 IT IS SO ORDERED. 20 21 DATED: March 2, 2010 22 23 24 25 26 27 COPIES TO: 28 All parties of record.
-409cv1676

1.

Respondent shall file and serve an answer to the petition, as well as points and authorities in support of such answer, no later then April 2, 2010. Along with the answer, Respondent shall lodge with the Court all records bearing on the merits of Petitioner's claims. The lodgments shall be accompanied by a notice of lodgment which shall be captioned "Notice of Lodgment in 28 U.S.C. § 2254 Habeas Corpus Case -- To Be Sent to Clerk's Office." Respondent shall not combine separate pleadings, orders, or other items into a combined lodgment entry. Each item shall be numbered separately and sequentially.

2.

Petitioner may file a traverse to matters raised in the answer no later then May 3, 2010. Any traverse by Petitioner shall: (1) state whether Petitioner admits or denies each allegation of fact contained in the answer; (2) be limited to facts or arguments responsive to matters raised in the answer; and (3) not raise new grounds for relief that were not asserted in the Petition. No traverse shall exceed ten (10) pages in length absent advance leave of Court for good cause shown.

________________________________ MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT