Mardesich v.  Cate

• Decision Date: 21 February 2012
• Docket Number: No. 08–55404.,08–55404.
• Citation: Mardesich v.  Cate, 12 Cal. Daily Op. Serv. 2078, 668 F.3d 1164, 2012 Daily Journal D.A.R. 2263 (9th Cir. 2012)
• Parties: Destinni MARDESICH, Petitioner–Appellant, v. Matthew CATE *, Secretary, California Department of Corrections and Rehabilitation; Scott Kernan *, Chief Deputy Secretary for Adult Operations, California Department of Corrections and Rehabilitation; Terri McDonald*, Director of Division of Adult Institutions, California Department of Corrections and Rehabilitation; Deborah K. Johnson *, Warden, Central California Women's Facility; Kamala Harris *, Attorney General, Respondents–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 2078

2012 Daily Journal D.A.R. 2263

668 F.3d 1164

Destinni MARDESICH, Petitioner–Appellant,

v.Matthew CATE *, Secretary, California Department of Corrections and Rehabilitation; Scott Kernan *, ChiefDeputySecretary for Adult Operations, California Department of Corrections and Rehabilitation; Terri McDonald*, Director of Division of Adult Institutions, California Department of Corrections and Rehabilitation; Deborah K. Johnson *, Warden, Central California Women's Facility; Kamala Harris *, Attorney General, Respondents–Appellees.

No. 08–55404.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 5, 2011.Filed Feb. 21, 2012.

Anand Krishnaswamy(argued), Michael J. Brennan, University of Southern California Post–Conviction Justice Project, Los Angeles, CA, for petitioner-appellantDestinni Mardesich.

Anthony Da Silva, Deputy Attorney General, San Diego, CA, for respondents-appelleesMatthew Cate, Secretary, California Department of Corrections and Rehabilitation, et al.

Appeal from the United States District Court for the Central District of California, Otis D. Wright, II, District Judge, Presiding.D.C.No. 8:06–cv–00009–ODW–AGR.Before: DOROTHY W. NELSON, RONALD M. GOULD, and SANDRA S. IKUTA, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

Destinni Mardesich appeals the district court's dismissal of three claims in her federal habeas petition as untimely under the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act (AEDPA).28 U.S.C. § 2244(d)(1).Because we apply the AEDPAstatute of limitations on a claim-by-claim basis, and because Mardesich's three claims challenging a state administrative agency's order were filed nearly 18 months after the statute of limitations expired, we affirm the district court's dismissal.

I

A

When Destinni Mardesich was 16, she convinced two friends to help her kill Damian McKenna, her former boyfriend and father of her child, because she feared McKenna might try to obtain custody of their young son.Though the fatal shots were fired by Mardesich's friend, she was personally armed with a gun and was present during the murder.She was tried as an adult in the Orange County Superior Court and convicted of first degree murder on December 15, 1992.The court sentenced her to 26 years to life, and committed her to the California Youth Authority, a state agency providing education and treatment to juvenile offenders.¹

About three years later, the California Youthful Offender Parole Board(Board)² exercised its authority under section 1737.1 of the California Welfare and Institutions Code to reconsider Mardesich's commitment to the Youth Authority.³After conducting three hearings, the Board concluded that Mardesich was not amenable to treatment and was therefore an improper person to be retained by the Youth Authority.Following the last of these hearings on October 25, 1996, the Board issued an order returning Mardesich to the Orange County Superior Court for criminal resentencing pursuant to section 1737.1.The Board's decision became final when it denied Mardesich's administrative appeal of the return order on August 19, 1997.Following the Board's order, the Orange County Superior Court sentenced Mardesich to 26 years to life in state prison on July 31, 1998.

Mardesich challenged the Board's return order and the subsequent Orange County resentencing in two separate legal proceedings.First, on October 15, 1997, Mardesich appealed the Board's decision by filing a petition for administrative mandamus in Ventura County Superior Court.The superior court denied the petition and after a round of appeals, the Ventura County Court of Appeals ultimately affirmed the denial.The California Supreme Court denied review of the case and that decision became final on August 19, 2003 when the 90–day period for filing a petition for writ of certiorari to the United States Supreme Court expired.SeeSup. Ct. R. 13.1;People v. Quicke,71 Cal.2d 502, 78 Cal.Rptr. 683, 455 P.2d 787, 790(1969).Second, Mardesich appealed the Orange County Superior Court's resentencing decision.This challenge was also unsuccessful.The Orange County Court of Appeals affirmed the sentence, and the California Supreme Court denied review of the case in a decision that became final 90 days later on December 14, 2004.

B

Mardesich petitioned for federal habeas relief under 28 U.S.C. § 2254.On December 13, 2005, the clerk's office of the district court for the Central District of California received Mardesich's habeas petition, which was then officially filed on January 3, 2006.Mardesich filed an amended petition on March 27, 2006.The petition raised four claims.

The first claim asserted that section 1737.1 violates Mardesich's federal and state constitutional due process rights because it permits the Board to return a youth offender for criminal sentencing without giving that ward “constitutionally adequate notice or [an] opportunity to be heard.”According to the petition, section 1737.1 allows the Board to return a ward after administrative proceedings where the ward has, among other things, no “adequate notice of charges; no right to counsel; ... and no right to a meaningful hearing with fair opportunity for presentation of evidence, cross-examination, and a neutral adjudicator limited to considering only evidence presented in the hearing.”In short, claim one alleged that section 1737.1 is unconstitutional because it essentially allows the Board to punish selected wards by “administrative fiat.”

The second claim asserted that section 1737.1 is unconstitutionally vague because a “person reading th[e]statute cannot determine what specifically is—and is not—a ‘violation’ of Section 1737.1.”Instead, “the statute leaves it up to the State(here, an administrative agency, the [Board] ) to determine ad hoc what will and will not result in more criminal punishment, based on standardless discretion.”Thus, claim two stated that the Board's “exercise [ of] its unbounded discretion to return [Mardesich] to Superior Court” was unconstitutional.

The third claim alleged that section 1737.1 is unconstitutionally overbroad because it permits the Board to return a ward for criminal resentencing “based upon protected First Amendment activities,” such as peaceful speech and thought.For example, in Mardesich's case, the Board's decision was in part based upon a “setback in her psychotherapy” that suggested she was “not treatable.”In short, claim three stated that section 1737.1 is unconstitutional because it allows the Board to exercise “unbounded discretion in punishing a person based in part on the content of his or her speech.”

Finally, the fourth claim asserted that the 1998Orange County resentencing violated the federal and California double jeopardy clauses because it was a “second sentence for the same offense.”According to claim 4, “[t]he second sentence is void” because “the [Orange County]Superior Court had no power” to impose it in the first place.

The magistrate judge recommended dismissing claims one through three of Mardesich's amended habeas petition as untimely under AEDPA's one-year statute of limitations.Though the magistrate found claim four to be timely, she recommended denying it as not contrary to, or an unreasonable application of, clearly established Supreme Court law.The district court adopted the magistrate's recommendations and denied Mardesich's habeas petition.The district court denied her request for a Certificate of Appealability(COA).Mardesich timely appealed and a motions panel of this court granted a COA with respect to one issue: “whether the district court properly dismissed claims one, two, and three as time-barred.”

On appeal, Mardesich asserts that claims one through three of her December 13, 2005 habeas petition are timely because the statute of limitations for these claims did not start running until her appeal of the Orange County resentencing became final on December 14, 2004.Mardesich argues that claims in a habeas petition are necessarily challenges to the proceeding that resulted in the petitioner's incarceration, and therefore a court must construe her three claims as challenges to the Orange County Superior Court's resentencing that resulted in her incarceration.California, by contrast, argues that these three claims challenge the Board's order returning Mardesich to superior court for resentencing pursuant to section 1737.1, which became final at the conclusion of Mardesich's mandamus proceedings on August 19, 2003.

II

We have jurisdiction pursuant to 28 U.S.C. § 1291.We review de novo a district court's dismissal of a habeas petition on timeliness grounds.Porter v. Ollison,620 F.3d 952, 958(9th Cir.2010).

A “person in custody pursuant to the judgment of a State court” can file a habeas petition alleging that the petitioner“is in custody in violation of the Constitution ... of the United States.”28 U.S.C. § 2254(a).AEDPA contains a one-year statute of limitations for bringing such petitions, which provides in relevant part:

(d)(1) 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.The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

... or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

§ 2244(d)(1).This one-year limitations period is tolled during the pendency of a “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim....”§ 2244(d)(2).

In order to address the timeliness of Mardesich's claims on appeal, we must consider two threshold issues: (1) whether we...