Aguirre v. Gipson
| Decision Date | 12 June 2013 |
| Docket Number | Case No.: 1:13-cv-00167-LJO-JLT |
| Court | U.S. District Court — Eastern District of California |
| Parties | LOUIS JUAREZ AGUIRRE, Petitioner, v. CONNIE GIPSON, Warden, Respondent. |
FINDINGS AND RECOMMENDATIONS RE:
RESPONDENT'S MOTION TO DISMISS
ORDER DIRECTING OBJECTIONS TO BE FILED
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The instant petition was filed on January 30, 2013.1 Petitioner, who pleaded guilty and wassentenced on July 31, 2009 to a state prison term of nine years, challenges his placement in the secure housing unit ("SHU") and his validation as a prison gang member, which, pursuant to Cal. Pen. Code § 2933.6, effective January 25, 2010, precludes Petitioner from receiving sentence-reducing credits. (Doc. 1). Subsequently, the Court ordered Respondent to file a response to the petition, and, on May 9, 2013, Respondent filed the instant motion to dismiss, contending that the petition is untimely under federal law. (Doc. 16). On May 30, 2013, Petitioner filed an opposition to the motion to dismiss, arguing that he had exhausted his administrative remedies at a later date than indicated in Respondent's documents, that he had filed additional state habeas corpus petitions that were entitled to statutory tolling, and that he was, in any event, entitled to equitable tolling due to his lack of access to the prison law library. (Doc. 19). On June 10, 2013, Respondent filed a reply to Petitioner's opposition in which Respondent asserted that, even with the amended chronology provided by Petitioner, the petition is still untimely. (Doc. 21).
The documents supplied by Respondent in the motion to dismiss, and those provided by Petitioner in his opposition, collectively establish the following chronology with respect to Petitioner's claims. On November 18, 2009, Petitioner was validated as a prison gang member. (Doc. 1, Ex. B, p. 15). Petitioner appears to have administratively appealed that decision to the Director's level, where it was denied on June 28, 2010. Petitioner also filed an administrative appeal from the decision to house Petitioner in the SHU as a result of his gang affiliation. (Doc. 16, Ex. 1). In that appeal, Petitioner contended that he should not be housed in the SHU because no documentation had been presented to show that he was "currently active in gang activity." (Id.). After his appeal was denied at the second level of review on October 13, 2010, Petitioner did not file an appeal at the Director's level. (Id., p. 9). On August 26, 2010, Petitioner filed an administrative appeal challenging his credit-earning status. (Doc. 1, Ex. B, p. 3). His appeal was denied at the Director's level on March 17, 2011. (Id., p. 1).
Respondent's motion to dismiss contends that, even taking the latest date upon which Petitioner lost an administrative appeal, his petition is untimely. The Court agrees.
As mentioned, Respondent has filed a Motion to Dismiss the petition as being filed outside the one year limitations period prescribed by Title 28 U.S.C. § 2244(d)(1). Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases.
The Ninth Circuit has allowed Respondent's to file a Motion to Dismiss in lieu of an Answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a Respondent can file a Motion to Dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.
In this case, Respondent's Motion to Dismiss is based on a violation of 28 U.S.C. § 2244(d)(1)'s one year limitation period. Because Respondent's Motion to Dismiss is similar in procedural standing to a Motion to Dismiss for failure to exhaust state remedies or for state procedural default and Respondent has not yet filed a formal Answer, the Court will review Respondent's Motion to Dismiss pursuant to its authority under Rule 4.
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). The instant petition was filed on January 30, 2013, and thus, it is subject to the provisions of the AEDPA.
The AEDPA imposes a one-year period of limitation on petitioners to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, subdivision (d) reads:
28 U.S.C. § 2244(d).
In most cases, the limitation period begins running on the date that the petitioner's direct review became final. Where, however, as here, the petitioner is challenging a prison administrative decision, the Ninth Circuit has held that direct review is concluded and the statute of limitations commences when the final administrative appeal is denied. Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003)( that the Board of Prison Term's denial of an inmate's administrative appeal was the "factual predicate" of the inmate's claim that triggered the commencement of the limitations period); Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004)( that the statute of limitations does not begin to run until a petitioner's administrative appeal has been denied).
Here, the task of determining the precise date upon which the one-year period commenced is complicated by the fact that Petitioner's challenge to his credit-earning capacity is, arguably, two-fold, i.e., based on his SHU incarceration and also his gang validation, both of which, pursuant to state law, preclude him from earning sentence-reducing credits. Moreover, since Petitioner was housed in the SHU and gang-validated, arguably both predicate circumstances could have triggered the one-year limitation period. However, as Respondent correctly notes, the petition is untimely under either scenario, and, thus, it is unnecessary to decide which predicate is the one upon which Petitioner isbasing his claim for loss of credits.
If Petitioner's claim is predicated on his gang validation, his last administrative appeal was denied on June 28, 2010. Therefore, the limitations period commenced on June 29, 2010, the following day, and ended 365 days later on June 28, 2011. Alternatively, assuming that the basis of Petitioner's claim is his placement in the SHU, his administrative appeal was denied on October 13, 2010. Accordingly, the one-year period would have commenced the following day, i.e., October 14, 2010, and would have expired 365 days later, i.e., on October 13, 2011. Since the instant petition was not filed until January 30, 2013, the petition is, on its face, untimely unless Petitioner is entitled to either statutory or equitable tolling.
Under the AEDPA, the statute of limitations is tolled during the time that a properly filed application for state post-conviction or other collateral review is pending in state court. 28 U.S.C. § 2244(d)(2). A properly filed application is one that complies with the applicable laws and rules governing filings, including the form of the application and time limitations. Artuz v. Bennett, 531 U.S. 4, 8, 121 S. Ct. 361 (2000). An application is pending during the time that 'a California petitioner completes a full round of [state] collateral review," so long as there is no unreasonable delay in the intervals between a lower court decision and the filing of a petition in a higher court. Delhomme v. Ramirez, 340 F. 3d 817, 819 (9th Cir. 2003), abrogated on other grounds as recognized by Waldrip v. Hall, 548 F. 3d 729 (9th Cir. 2008)(per curium)(internal quotation marks and citations omitted); see Evans v. Chavis, 546 U.S. 189, 193-194, 126 S. Ct. 846 (2006); see Carey v....
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