Thibodeaux v. Kilmer et al
Filing
31
OPINION AND ORDER. I conclude that petitioners habeas corpus petition was timely filed. Accordingly, IT IS ORDERED that within 30 days of the date of this order, respondent shall file any further response to petitioners habeas petition. Petitioner may file an additional supporting memorandum within 30 days thereafter, at which time petitioners habeas petition shall be taken under advisement. IT IS SO ORDERED. Signed on 9/01/2011 by Judge Garr M. King. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LOUIS JAMES THIBODEAUX,
Petitioner,
03:10-cv-00133-KI
OPINION AND ORDER
v.
GARY KILMER, Superintnedent,
Respondent.
Corrine J. Lai
Attorney at Law
The Foundry at Jean
5895 Jean Road
Lake Oswego, OR 97035
Attorney for Petitioner
John R. Kroger
Attorney General
Summer R. Gleason
Senior Assistant Attorney General
Department of Justice
1162 Court Street N.E.
Salem, OR 97301-4096
Attorneys for Respondent
KING, Judge
Petitioner brings this habeas corpus proceeding pursuant to 28
U.S.C. § 2254.
Respondent moves the court to deny habeas relief on
1 -- OPINION AND ORDER
the sole basis that the petition is untimely.
For the reasons set
forth below, I conclude that the petition was timely filed.
BACKGROUND
On December 14, 2000, petitioner was convicted of Robbery in
the First Degree and Unauthorized Use of a Weapon.
He was
sentenced to a 120-month term of incarceration, with 36 months
post-prison supervision.
Resp. Exh. 101.
On or about January 12, 2009, petitioner filed a petition for
writ of mandamus in Marion County Circuit Court, seeking to compel
the State of Oregon, the Oregon Department of Corrections (ODOC),
the Oregon Parole Board, and Superintendent Brian Belleque to
correctly
calculate
confinement.
his
sentence
Resp. Exhs. 102 & 103.1
and/or
to
release
him
from
According to petitioner, his
state sentence should have expired on September 2, 2008.
On February 18, 2009, the Honorable L.E. Ashcroft issued an
order requiring defendants to show cause why the writ should not
issue.
Resp. Exh. 104.
In response, the Board of Parole and
Superintendent Belleque moved to dismiss the writ on the basis that
the
ODOC
is
the
sole
entity
responsible
for
calculating
a
prisoner’s sentence expiration date and, therefore, the only proper
defendant.
Resp. Exh. 105.
1
Additionally, the ODOC moved for
In setting forth the filing dates in this proceeding, I
apply the “mailbox rule” of Houston v. Lack, 487 U.S. 266 (1988),
which deems a pleading filed at the time the prisoner delivers it
to prison authorities for mailing to the clerk of the court.
2 -- OPINION AND ORDER
summary judgment on the basis that petitioner had an adequate
remedy at law (state habeas corpus), and petitioner’s sentence had
been properly calculated.
Resp. Exhs. 106 & 107.
On August 28, 2009, Judge Ashcroft issued an opinion letter
denying petitioner’s petition for writ of mandamus on the basis
that the court lacked jurisdiction to mandate that the ODOC allow
an inmate to participate in alternative programing; petitioner
failed to exhaust his administrative remedies; petitioner had a
plain,
speed
and
alternative
remedy
available;
there
was
no
material issue of fact in dispute; and defendant was entitled to
judgment as a matter of law.
on October 8, 2009.
Resp. Exh. 115.
Judgment was entered
Resp. Exh. 102.
In the instant proceeding, respondent argues that petitioner’s
federal habeas petition is untimely because it was not filed within
one year of September 2, 2008.
See 28 U.S.C. § 2244(d)(1)(D).
According to respondent, petitioner’s state mandamus proceeding did
not statutorily toll the one-year limitation period under
§ 2244(d)(2) because it was not “properly filed”.
Respondent
reasons that “[u]nder Pace v. DiGuglielmo, 125 S.Ct. 1807, 161
L.Ed.2d 669, the alternative writ of mandamus was not properly
filed because it was not the appropriate remedy.”
///
///
///
3 -- OPINION AND ORDER
I disagree.
DISCUSSION
Pursuant to 28 U.S.C. § 2244(d)(1), a one-year period of
limitation applies to an application for a writ of habeas corpus
filed "by a person in custody pursuant to the judgment of a State
court."
pursuant
The limitation period applies to any “person in custody
to
the
judgment
of
a
State
court”
who
brings
an
application for a writ of habeas corpus (including a challenge to
a prison administrative decision).
1061, 1063 (9th Cir. 2004).
limitation
predicate
period
of
the
Shelby v. Bartlett, 391 F.3d
In the instant proceeding, the
runs
from
“the
claim
or
claims
date
on
which
presented
the
could
discovered through the exercise of due diligence.”
factual
have
been
28 U.S.C.
§ 2244(d)(1)(D).
However, the statute of limitations is tolled for "[t]he time
during which a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment
or claim is pending."
28 U.S.C. § 2244(d)(2) (emphasis added).
An
application or petition is “properly filed” when its delivery and
acceptance are in compliance with the applicable laws and rules
governing filings, such as rules prescribing the form of the
document, the time limits on its delivery, the court and office in
which it must be lodged, and the filing fee.
Artuz v. Bennett, 531
U.S. 4, 9 (2000); Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005).
In determining whether a petition is properly filed, this court
4 -- OPINION AND ORDER
does not examine whether the individual claims contained in the
petition lack merit or are procedurally barred, unless such defects
are “conditions to filing, as opposed to a condition to obtaining
relief.”
In
Artuz, 531 U.S. at 9-11.
the
limitation
instant
period
proceeding,
commenced
on
respondent
September
contends
2,
2008,
that
the
the
date
petitioner learned he would not be released from custody. I accept
this date for purposes of addressing respondent’s argument. Hence,
petitioner’s habeas petition must have been filed by September 2,
2009, unless the limitation period was statutorily tolled due to
the pendency of petitioner’s state mandamus petition.
However, contrary to respondent’s assertion, I conclude that
petitioner’s state mandamus petition tolled the limitation period.
Because
petitioner
challenged
the
legality
of
his
continuing
confinement in his state mandamus petition, the state petition is
properly characterized as an application for “collateral review
with respect to the pertinent judgment or claim . . . pending”
under 28 U.S.C. § 2244(d)(2).
Further, it appears from the state court record that the state
mandamus petition complied with all applicable laws and rules
governing filing, but ultimately was denied because petitioner had
an adequate remedy at law, and was not otherwise entitled to
mandamus relief.
Those types of procedural bars to relief are
“conditions to obtaining relief”, not “conditions to filing” and,
5 -- OPINION AND ORDER
therefore, do not render petitioner’s mandamus petition improperly
filed for purposes of § 2244(d)(2).
See Blair v. Crawford, 275
F.3d 1156, 1159 (9th Cir. 2002); Harris v. Director, Virginia Dept.
of Correc., 282 Fed.Appx. 239 *3 (4th Cir. 2008); see also Brown v.
Barrow, 512 F.3d 1304, 1308 n. 2 (11th Cir. 2008) (opining that “a
properly filed state mandamus petition would probably toll the
limitations period”); Davis v. Hart, 2010 WL 3292081 *1 (S.D.Ga.
Aug. 19, 2010) (same); but see Moore v. Cain, 298 F.3d 361, 367 (5th
Cir. 2002) (mandamus petition did not toll limitation period where
it did not challenge the judgment pursuant to which the petitioner
was incarcerated).
Accordingly, because petitioner’s state mandamus petition was
properly filed, and was pending from January 12, 2009 to October 8,
2009, the limitation period was statutorily tolled under
§ 2244(d)(2) during that same time period, rendering his federal
habeas corpus petition, filed on February 3, 2010, timely.
CONCLUSION
Based on the foregoing, I conclude that petitioner’s habeas
corpus petition was timely filed.
Accordingly, IT IS ORDERED that
within 30 days of the date of this order, respondent shall file any
further response to petitioner’s habeas petition.
///
///
///
6 -- OPINION AND ORDER
Petitioner may file an additional supporting memorandum within
30 days thereafter, at which time petitioner’s habeas petition
shall be taken under advisement.
IT IS SO ORDERED.
DATED this
1st
day of September, 2011.
/s/ Garr M. King
Garr M. King
United States District Judge
7 -- OPINION AND ORDER
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