Clark v. McEwen

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION; denying Petition for Writ of Habeas Corpus; and denying Petitioner's 10 request for Evidentiary Hearing. Certificate of Appealability denied; Signed by Judge Anthony J. Battaglia on 04/11/12.(All non-registered users served via U.S. Mail Service)(cge)

1
2
3
4
5
6
7
8
9
UNITED STATES DISTRICT COURT
10
SOUTHERN DISTRICT OF CALIFORNIA
11
12
13
14
15
16

) Case No. 10cv02149-AJB (RBB)
)
) ORDER ADOPTING REPORT AND
Petitioner,
) RECOMMENDATION; DENYING
v.
) PETITION FOR WRIT OF HABEAS
) CORPUS; AND DENYING
L.S. MCEWEN,
) PETITIONER’S REQUEST FOR
) EVIDENTIARY HEARING [Doc. No. 10]
Respondent.
)
Presently before this Court is Magistrate Judge Ruben B. Brooks' Report & Recommendation
NATHAN CLARK,

17
(“R & R”). (Doc. No. 10.) The R & R recommends the Court deny Petitioner Nathan Clark’s (“Peti18
tioner” or “Clark”) petition for writ of habeas corpus, as well as his request for an evidentiary hearing.
19
(Doc. No. 11.) This Court has considered Clark’s petition, Respondent L.S. McEwen’s (“Respondent”
20
or “McEwen”) response, Petitioner's traverse, all supporting documentation, and Petitioner's objections
21
to the R & R. Having considered these documents, the Court ADOPTS the R & R, DENIES Clark's
22
petition for writ of habeas corpus, and DENIES Clark's request for an evidentiary hearing.
23
Background
24
Petitioner alleges prison officials violated the California Department of Corrections and
25
Rehabilitation’s (“CDCR”) policy that prohibits “stacking” when it imposed three separate forfeitures of
26
his good time credits for rules violations that stemmed from the same offense. (Doc. No. 1.) The three
27
violations resulted in a loss of ninety days of good time credits, thirty days for each violation. On
28
January 10, 2010, nearly five years after the alleged “stacking” occurred, Petitioner submitted an inmate
1

10cv2149

1

grievance that contended the loss of his credits was in violation of CDCR policy. On January 12, 2010,

2

Petitioner’s grievance was screened out as untimely, pursuant to section 3084.6(c) of the California

3

Code of Regulations.

4

Petitioner appealed the decision and explained he had been unaware of CDCR’s policy against

5

“stacking” until the time he filed his initial grievance. Petitioner further alleged the hearing officer

6

should have recognized the improper “stacking.” On January 20, 2012, Petitioner’s appeal was also

7

screened out as untimely.

8
9

On February 8, 2010, Clark filed a petition for writ of habeas corpus with the California Superior
Court for the County of Imperial. Clark alleged due process violations that arose from prison officials

10

“stacking” three instances of rules violations. (Doc. No. 1.) On March 19, 2010, the superior court

11

denied the petition because it was untimely and failed to account for the significant delay in filing the

12

state petition. Id. (citing In re Clark, 5 Cal.4th 750 (Cal. 1993)). Petitioner filed a petition with the

13

California Supreme Court, which was denied on August 18, 2010. (Id. at 42.)

14

On October 12, 2010, Clark filed a federal petition for writ of habeas corpus. (Doc. No. 1.)

15

Respondent filed a response on December 30, 2010. (Doc. No. 6.) Magistrate Judge Ruben B. Brooks

16

issued an R & R to this Court, recommending that the Petition be denied, and that Petitioner's request for

17

an evidentiary hearing also be denied. (Doc. No. 10.) Clark filed objections to the R & R with this

18

Court on March 27, 2012. (Doc. No. 11.)

19

Legal Standard

20

The duties of a district court in connection with a magistrate judge's R & R are set forth in Rule

21

72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). A district court must “make a

22

de novo determination of those portions of the report . . . to which objection is made,” and “may accept,

23

reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”

24

28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3) (2007); see also United States v. Raddatz, 447 U.S. 667,

25

676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (“(I)n providing for a ‘ de novo ‘ determination . . .

26

Congress intended to permit whatever reliance a district judge, in exercise of sound judicial discretion,

27

chose to place on a [magistrate judge’s] proposed findings and recommendations.”).

28

//
2

10cv2149

1

Discussion

2

The R & R concluded that Clark’s petition was time-barred under the Antiterrorism and

3

Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitation because Clark first attempted to

4

exhaust his claims in state court nearly five years after the alleged violations occurred. (R & R, 11:13-

5

15) (citing 28 U.S.C.A. § 2244(d)(1) (West 1996)). The R & R further concluded that neither statutory

6

or equitable tolling apply to Petitioners case. (Id. at 22:11-12.) Finally, the R & R found Petitioner is

7

procedurally barred from bringing his claim, as he did not establish the cause and prejudice exception

8

applies to his case. (Id. at 29:8-10.) After reviewing Petitioner's objections and the entire record, this

9

Court concludes the Magistrate Judge correctly determined Petitioner is not entitled to habeas relief.

10

I.

Objections

11

Petitioner objects to the R & R on the grounds that his petition does not challenge a state

12

conviction or judgment of a state court. Further, Petitioner objects on the grounds that his claim is not

13

subject to the procedural bar set forth by the AEDPA’s limitations period. See 28 U.S.C.A. § 2244(d)(1)

14

(West 1996). Finally, Petitioner objects on the grounds that he exhausted administrative and state court

15

remedies prior to filing his federal petition.

16

A.

AEDPA’s Statute of Limitations

17

Petitioner argues the AEDPA’s statute of limitations applies only to petitions that challenge

18

custody pursuant to the judgment of a state court. Petitioner cites Cox v. McBride, which holds that a

19

prison disciplinary board is not considered a state court for purposes of the AEDPA’s limitations period.

20

Cox v. McBride, 279 F.3d 492, 493 (7th Cir. 2002) (recognizing a well-established distinction between

21

a state court and a state prison disciplinary board).

22

In Cox, Petitioner was found guilty by a prison disciplinary board of assaulting a guard and was

23

sentenced to lose two years of good-time credits. Id. The district court dismissed Cox’s habeas petition

24

as untimely. The Seventh Circuit analyzed the meaning of the word “court” within the AEDPA,

25

however, and found that it was not meant to encompass a prison disciplinary board.1 Consequently, the

26
27
1

28

28 U.S.C.A. § 2244(d)(1) (West 1996) (“A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state
court.”).
3

10cv2149

1

Seventh Circuit found the sentence imposed by the prison disciplinary board was distinct from the

2

custody he must serve as the result of state court’s judgment and remanded the case. Id.

3

Here, Petitioner contends his case is analogous to Cox, as he was also sentenced to lose good

4

time credits by a prison disciplinary board. Although Cox seems factually on point with the instant case,

5

its ruling is not binding on this Court. Furthermore, the Ninth Circuit Court of Appeals disagreed with

6

the Seventh Circuit’s holding in Cox. In Shelby v. Bartlett, 391 F.3d 1061 (9th Cir. 2004), Shelby’s

7

petition challenging a prison disciplinary board’s decision was time-barred by the AEDPA’s statute of

8

limitations. As in Cox, Petitioner argued that the AEDPA’s statute of limitations did not apply to prison

9

disciplinary board decisions. Id. at 1063. However, the court joined the Second, Fourth, and Fifth

10

Circuits and held that the AEDPA’s statute of limitations period applies to all habeas petitions filed by

11

persons “in custody pursuant to the judgment of a State court,” 28 U.S.C. § 2244(d)(1), even if the

12

petition challenges a pertinent administrative decision rather than a state court judgment. Shelby, 391

13

F.3d at 1063 (disagreeing with the Seventh Circuits narrow interpretation of the AEDPA).

14
15

Therefore, as the Ninth Circuit Court of Appeals held that prison disciplinary board decisions
fall under the AEDPA’s statute of limitations, this Court DENIES relief based on these claims.

16

B.

Statutory Tolling

17

The statute of limitations is statutorily tolled while a “properly filed” state habeas corpus petition

18

is “pending” in the state court. 28 U.S.C. § 2244(d)(2). Statutory tolling is not available if the first state

19

habeas petition is filed after the limitations period has expired. Jiminez v. Rice, 276 F.3d 478, 482 (9th

20

Cir.2001). Here, Petitioner filed his first state habeas petition in the state superior court on February 18,

21

2010. Even accepting Petitioner's assertion that he became aware of the factual predicate of his claim

22

sometime between December 2009 and January 2010, his filing of the state habeas petition nearly five

23

years later could not statutorily toll the already expired one-year statute of limitations. Jiminez, 276 F.3d

24

at 482.

25

C.

Equitable Tolling

26

Petitioner repeatedly argues that he did not fail to meet the AEDPA’s statute of limitations

27

requirements because he “asserted due diligence in pursuit of correcting his constitutional violations and

28

deprivations.” (Objections to R & R, 2:10-12.) Petitioner agrees with Respondent that he filed his initial
4

10cv2149

1

grievance nearly five years after the alleged “stacking” occurred. Petitioner argues, however, that the

2

AEDPA’s statute of limitations was tolled until he was made aware of the violations that took place.

3

Here, although the alleged violations took place on July 20, 2005, Petitioner contends he filed his

4

grievance with the prison disciplinary board on January 10, 2010, less than one year after he was made

5

aware of the violations As such, Petitioner argues he filed his claim “within the ADEPA’s one year

6

statute of limitations. (Id. at 2:5-6). Petitioner’s arguments that the statute of limitations was tolled

7

because he was unaware of the violations, however, are incorrect. The R & R addressed this issue and

8

determined that neither statutory nor equitable tolling applied to Petitioner’s case. (R & R, 22: 11-13.)

9

Equitable tolling of the statute of limitations is appropriate when the petitioner can show “(1)

10

that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

11

way.” Holland v. Florida, 130 S.Ct. 2549, 2554 (2010). Magistrate Judge Brooks cited numerous Ninth

12

Circuit cases where a prisoner’s lack of legal knowledge and legal sophistication were not extraordinary

13

circumstances that warranted equitable tolling. (R & R, 21:2-11) (citing Raspberry v. Garcia, 448 F.3d

14

1150, 1154 (9th Cir. 2006); Perez v. Adams, 405 F.App’x 262, 263 (9th Cir. 2010)). Thus, nothing in

15

the factual record demonstrates a barrier to Petitioner's timely filing of a state habeas petition, nor has

16

Petitioner argued that any other circumstances would justify equitable tolling. As a result, Petitioner has

17

not met the very high burden of qualifying for equitable tolling.

18

Because Petitioner’s claims related to his plea agreement are not eligible for statutory or

19

equitable tolling, the Court finds they are barred by AEDPA's one-year statute of limitations. Therefore,

20

the Court DENIES relief based on these claims.

21

D.

Procedural Default

22

“A habeas petitioner who has failed to comply with a state’s procedural requirements for

23

presenting federal claims has deprived the state courts of an opportunity to address the claims. Coleman

24

v. Thompson, 501 U.S. 722, 732 (1991) (citing 28 U.S.C.A. § 2254(b). The respondent has the burden

25

of pleading an adequate and independent procedural bar as an affirmative defense in a habeas case. See

26

Bennet v. Mueller, 322 F.3d 573, 585 (9th. Cir. 2003). If the respondent meets its burden, the burden

27

shifts to the petitioner to show “cause” and “prejudice.” Walker v. Martin, 131 S.Ct. 1120, 1127 (2011).

28
5

10cv2149

1

Petitioner argues he did not fail to exhaust his remedies because he filed his grievance with the

2

prison disciplinary board, and his claim in state court, prior to filing his federal habeas petition.

3

Petitioner cites a few cases to support his contention; however, Petitioner may be confused as to how the

4

holding in these cases applies here. In Darr v. Burford, 399 U.S. 200 (1950), “The Supreme Court . . .

5

held that (a) District Court properly refused to grant writ of habeas corpus on application of one

6

detained under judgment of conviction in state court presenting federal constitutional question, where

7

that question had been squarely passed upon by state supreme court in application for writ of habeas

8

corpus, and prisoner had not filed petition for certiorari with the United States Supreme Court.” Darr

9

was overruled by Fay v. Noia, 372 U.S. 391 (1963), which may be the case Petitioner meant to cite.

10

In Fay, the Supreme Court overruled Darr, reasoning that requiring Petitioners to file an

11

application for certiorari was unnecessarily burdensome on Petitioner and the Supreme Court. Fay, 372

12

U.S. at 436. Nevertheless, Petitioner did not object to the R& R’s finding of independence and

13

adequacy, nor did Petitioner object to the R & R’s finding of no “cause” and “prejudice,” which is

14

required before federal habeas relief will be available. Petitioner, without analysis, cites Werts v.

15

Vaugh, merely stating in quotes, “fair presentation.” Werts, however, notes that a claim that has been

16

held to be procedurally barred by a state court is not reviewable by a federal court. (“Werts' due process

17

claim based on the prosecutor's vouching statements, however, is not reviewable here, despite excusable

18

exhaustion, because this claim is procedurally defaulted.”). The court in Werts found that a Petitioner

19

who failed to comply with a state rule must establish cause and prejudice in order to obtain habeas relief

20

under federal law. Werts v. Vaughn, 228 F.3d 178, 193-94 (3d Cir. 2000) “[W]e may not consider the

21

merits of Werts' due process argument regarding the vouching statements unless he has established

22

cause and prejudice. . . .”).

23

Here, the magistrate judge also found that Petitioner must establish cause and prejudice in order

24

to obtain habeas relief. (R & R, 27: 25-27.) Nevertheless, Petitioner merely states he exhausted all

25

claims and cites the above cases, without any analysis. Moreover, Petitioner does not object to the R &

26

R’s finding that he must show “cause or prejudice” to bring his federal claim, nor does he provide any

27

facts to support a finding for cause or prejudice, which would allow this Court to hear his claims. The

28

Court therefore DENIES relief based on these claims.
6

10cv2149

1
2

II.

Evidentiary Hearing
Finally, Petitioner requests an evidentiary hearing as to his claims. (Doc. No. 11.) Because

3

Petitioner is not entitled to habeas relief as to any claim presented, his request for an evidentiary hearing

4

is DENIED. See Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.1984) (holding that an evidentiary

5

hearing is not required on issues which can be resolved on the basis of the state court record).

6

Conclusion

7

For the reasons above, this Court ADOPTS the R & R and, accordingly, DENIES Clark's

8
9

Petition for writ of habeas corpus in its entirety and DENIES the request for an evidentiary hearing.
When a district court enters a final order adverse to the applicant in a habeas proceeding, it must

10

either issue or deny a certificate of appealability. Rule 11(a) of the Rules Governing Section 2254 Cases.

11

A certificate of appealability is required to appeal a final order in a habeas proceeding. 28 U.S.C. §

12

2253(c)(1)(A). It is appropriate only where the petitioner makes “a substantial showing of the denial of a

13

constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Under this standard, the petitioner

14

must demonstrate that reasonable jurists could debate whether the petition should have been resolved in

15

a different manner or that the issues presented were adequate to deserve encouragement to proceed

16

further. 28 U.S.C. § 2253; Slack v. McDaniel, 529 U.S. 473, 474 (2000). The Court concludes that

17

Petitioner has not met this standard and DENIES the certificate of appealability.

18

IT IS SO ORDERED.

19
20

DATED: April 11, 2012

21
22

Hon. Anthony J. Battaglia
U.S. District Judge

23
24
25
26
27
28
7

10cv2149