Colbert v. Schulteis
| Decision Date | 27 May 2011 |
| Docket Number | 1:10-cv-01532-LJO-SMS-HC |
| Court | U.S. District Court — Eastern District of California |
| Parties | GEORGE K. COLBERT, Petitioner, v. L. L. SCHULTEIS, Respondent. |
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is Respondent's motion to dismiss the petition, which was filed on March 25, 2011, and served on Petitioner on the same date. (Doc. 14, 6.) No opposition to the motion to dismiss was filed.
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v.Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. -, -, 131 S.Ct. 13, 16 (2010) (per curiam).
Rule 4 of the Rules Governing Section 2254 Cases (Habeas Rules) 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...."
The Ninth Circuit has allowed respondents to file motions to dismiss pursuant to Rule 4 instead of answers if the motion to dismiss attacks the pleadings by claiming that the petitioner has failed to exhaust state remedies or has violated 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 may file a motion to dismiss after the Court orders the respondent to respond, and the Court should use Rule 4 standards to review a motion to dismiss filed before a formal answer. See, Hillery, 533 F. Supp. at 1194 & n.12.
In this case, Respondent's motion to dismiss addresses the untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1) as well as a lack of exhaustion of state court remedies. The material facts pertinent to the motion are mainly to be found in copies of the official records of state administrative and judicial proceedings which have been provided by Respondent and Petitioner, and as to which there is no factual dispute. Because Respondent has not filed a formal answer, and because Respondent's motion to dismiss is similar in procedural standing to other motions to dismiss for state procedural default, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
Here, Petitioner alleges that he was an inmate of the California Correctional Institution at Tehachapi, California, suffering a forfeiture of sixty (60) days of time credit imposed after Petitioner was adjudicated guilty of committing a disciplinary violation of being disrespectful toward staff. (Pet. 1.) Petitioner argues that in the course of the disciplinary proceedings, he suffered violations of his rights to due process and equal protection of the laws guaranteed by the Fourteenth Amendment. (Pet. 4.)
By order dated January 27, 2011, the Court severed an additional claim in the petition that concerned a separate and later disciplinary proceeding. (Doc. 8.) That claim was refiled in a separate case.
Thus, the present petition concerns the earlier proceeding referred to in the petition, namely, IAB case no. 0813485, locallog. no. CCI-08-02744. (Pet. 9; Doc. 8, 10:23-28-11:1.)
Respondent correctly contends that the state court proceedings referred to by Petitioner in his petition do not relate to the disciplinary finding concerning disrespect for staff; rather, they pertain to a later disciplinary violation in December 2008. (Mot., Ex. 4, doc. 14-1, 36-37; Ex. 5, doc. 14-1, 38-52; Ex. 6, doc. 14-1, 53-54; Ex. 7, doc. 14-1, 55-56.) Petitioner failed to submit any documentation of exhaustion of the pertinent claim in response to the motion to dismiss. Thus, record before the Court does not demonstrate exhaustion of state court remedies.
Respondent argues that the petition is untimely because Petitioner filed his petition in this Court outside of the one-year limitation period provided for in 28 U.S.C. § 2244(d).
The AEDPA provides a one-year period of limitation in which a petitioner must file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). It further identifies the pendency of some proceedings for collateral review as a basis for tolling the running of the period. As amended, subdivision (d) provides:
28 U.S.C. § 2244(d).
Pursuant to § 2244(d)(1)(A), the limitation period runs from the date on which the judgment became final. Generally, under § 2244(d)(1)(A), the "judgment" refers to the sentence imposed on the petitioner. Burton v. Stewart, 549 U.S.147, 156-57 (2007).
However, in the present case, the decision that Petitioner challenges is not a state court judgment, but rather the decision of prison disciplinary authorities.
The one-year limitation period of § 2244 applies to habeas petitions brought by persons in custody pursuant to state court judgments who challenge administrative decisions, such as the decisions of state prison disciplinary authorities. Shelby v. Bartlett, 391 F.3d 1061, 1063, 1065-66 (9th Cir. 2004). However, it is § 2244(d)(1)(D) that applies to petitions challenging administrative decisions. Redd v. McGrath, 343 F.3d 1077, 1080 n.4 (9th Cir. 2003) (parole board determination).
Thus, the point at which an administrative decision becomes final is the date on which the factual predicate of the claim orclaims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(D). In Shelby and Redd, the pertinent date was the date on which notice of the decision was received by the petitioner. Thus, the statute of limitations was held to have begun running the day after notice of the decision was received. Shelby v. Bartlett, 391 F.3d at 1066; Redd, 343 F.3d at 1082.
Here, the decision concerns a rule violation report dated September 5, 2008, involving disrespect toward staff. (Pet. 9.) The Director's Level appeal decision that issued in Petitioner's administrative appeal of the disciplinary finding was dated February 11, 2009. (Pet. 9.) At all pertinent times in California, the final level of administrative appeal was referred to as the "Director's Level." Cal. Code Regs., tit. 15, § 3084.5(d); Brodheim v. Cry, 584 F.3d 1262, 1264-65 (9th Cir. 2009). Thus, the final decision in Petitioner's appeal was made on February 11, 2009.
Respondent argues that this establishes that the statute began running the next day, and Petitioner had until February 11, 2010, to file a timely federal petition.
Generally the statute of limitations is an affirmative defense, and the party claiming the defense bears the burden of proof unless the limitations statute is considered to be jurisdictional. Kingman Reef Atoll Investments, L.L.C. v. U.S., 541 F.3d 1189, 1197 (9th Cir. 2008); Payan v. Aramark Management Services Ltd. Partnership, 495 F.3d 1119, 1122 (9th Cir. 2007). The one-year statute of limitations on petitions for federal habeas corpus relief by state prisoners is not jurisdictional anddoes not set forth an inflexible rule requiring dismissal whenever the one-year clock has run. Holland v.Florida, --U.S.-, 130 S.Ct. 2549, 2560 (2010). Thus, under AEDPA, the respondent bears the burden of proving that the AEDPA limitations period has expired. Ratliff v. Hedgepeth, 712 F.Supp.2d 1038, 1050 (C.D.Cal. 2010) (collecting authorities).
Here, the face of the record does not reflect when the final decision in Petitioner's administrative appeal was served on Petitioner or when Petitioner received the decision.
The present case is thus different from both Redd and Shelby because here, Petitioner does not concede that he received notice of the final decision at any specific time or that he received timely notice of the decision.
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