Redd v. McGrath

• Citation: 343 F.3d 1077
• Decision Date: 11 September 2003
• Docket Number: No. 02-16845.,02-16845.
• Parties: Paul Alywen REDD, Jr., Petitioner-Appellant, v. Joe McGRATH, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

343 F.3d 1077

Paul Alywen REDD, Jr., Petitioner-Appellant, v. Joe McGRATH, Respondent-Appellee.

No. 02-16845.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 2003.

Filed September 11, 2003.

Michael R. Snedeker, Snedeker, Smith & Short, Portland, OR, for the petitioner-appellant.

Allen R. Crowne, Deputy Attorney General, San Francisco, CA, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Jeremy Fogel, District Judge, Presiding. D.C. No. CV-01-20876-JF.

Before HUG, JR., GIBSON^* and FISHER, Circuit Judges.

OPINION

FISHER, Circuit Judge.

Paul Alywen Redd, Jr., a California state prisoner serving an indeterminate life sentence for murder, appeals the judgment of the district court denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Redd's petition, which was filed on September 18, 2001, challenges the California Board of Prison Terms' determination that he was unsuitable for parole. The district court dismissed the petition as untimely under AEDPA's one-year statute of limitations, see 28 U.S.C. § 2244(d)(1), which the court held began to run on December 8, 1998, the day after the California Board of Prison Terms ("Board") denied Redd's administrative appeal. Redd contends on appeal before this court that his petition was timely filed because AEDPA's statute of limitations did not begin running until January 19, 2001, at the completion of state habeas review.

We agree with the district court that 28 U.S.C. § 2244(d)(1)(D) applies to Redd's petition and that the limitations period began to run when the Board denied his administrative appeal. Because Redd did not file his federal habeas petition until nearly four months after the statute of limitations expired, his petition is untimely and must be dismissed.

FACTUAL AND PROCEDURAL BACKGROUND

In 1976, Redd was convicted of murder in California state court and was sentenced to a prison term of seven years to life under California's Indeterminate Sentencing Law.¹ On May 5, 1998, the Board held a hearing to determine Redd's suitability for parole. At the hearing, Redd presented declarations from friends, family members, potential employers and psychological experts in support of his parole application. He also argued that under the Board's own rules, an inmate with his record should have served less than the two decades he had already spent in prison. In a decision effective June 17, 1998, the Board found Redd unsuitable for parole.

Redd filed an administrative appeal, asserting that the Board had violated its own rules as well as Redd's state and federal constitutional rights in denying him parole. The Board denied Redd's appeal on December 7, 1998.

California does not provide for direct judicial review of Board decisions, so a state prisoner can challenge the denial of parole in state court only collaterally by means of a state habeas corpus petition. In re Sturm, 11 Cal.3d 258, 113 Cal.Rptr. 361, 521 P.2d 97, 104 (1974). Redd filed a state habeas petition in superior court on August 9, 1999. Following the denial of that petition, Redd filed another habeas petition in the California Court of Appeal.² That petition was also unsuccessful, and Redd then filed a final state habeas petition in the California Supreme Court. That petition too was denied on December 20, 2000, in a decision that became effective on January 19, 2001.³

Redd filed his federal habeas petition on September 18, 2001, asserting among other things that the Board's determination that he was unsuitable for parole violated due process of law. The district court, acting on the state's motion, dismissed the petition as untimely under the one-year statute of limitations contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d). The court held that under § 2244(d)(1)(D), the limitations period began to run when "the factual predicate" of Redd's habeas claims "could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). The district court reasoned that the factual predicate of Redd's claims was the Board's denial of Redd's administrative appeal on December 7, 1998, and that the limitations period began to run on the following day. See Patterson v. Stewart, 251 F.3d 1243, 1244-46 (9th Cir.2001) (holding that Federal Rule of Civil Procedure 6(a), the general rule for counting time in federal courts, applies to the calculation of AEDPA's one-year limitations period). After taking statutory tolling into account, the court determined that Redd had filed his federal habeas petition approximately four months after the limitations period expired. Redd filed a timely appeal.

STANDARD OF REVIEW

We review de novo the dismissal of a state prisoner's federal habeas corpus petition on statute-of-limitations grounds. Malcom v. Payne, 281 F.3d 951, 955-56 (9th Cir.2002).

DISCUSSION

We must determine when AEDPA's one-year limitations period began to run for Redd's federal habeas petition and whether Redd filed his petition before the limitations period expired.⁴

I.

Section 2244 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.

28 U.S.C. § 2244.⁵ The one-year limitations period, however, 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." Id. § 2244(d)(2). The limitations period is also subject to equitable tolling if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Stillman v. LaMarque, 319 F.3d 1199, 1202 (9th Cir.2003) (internal quotation marks omitted).

The district court held, and the state argues on appeal, that subparagraph (D) applies and that the "factual predicate" of Redd's habeas claims — and thus the triggering event for the limitations period — was the Board's denial of Redd's administrative appeal on December 7, 1998.⁶ Redd does not dispute that if the limitations period began to run from that date, his petition is untimely. Redd contends, however, that the limitations period did not begin to run until January 19, 2001, the effective date of the California Supreme Court's denial of state habeas relief, and that his petition is timely because he filed it on September 18, 2001, less than a year later. It is unclear whether Redd is arguing for application of subparagraph (A) or subparagraph (D), and thus we consider both.

1. Subparagraph (A)

The district court reasoned that subparagraph (A) does not apply because "[t]he word `judgment' as used in [(A)] evidently refers back to the phrase `judgment of a State court' in the first line of 2244(d)(1)," rather than to an administrative decision. The Fourth and Fifth Circuits have reached the same conclusion. See Wade v. Robinson, 327 F.3d 328, 332 (4th Cir.2003) ("Subparagraph (A), referencing `the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review,' plainly references `the judgment' referred to in the preceding subpart (1) — that is, the state court judgment pursuant to which the petitioner is in custody."); Kimbrell v. Cockrell, 311 F.3d 361, 364 (5th Cir.2002) ("Subsection (A) ties the date of filing expressly to the state court judgment pursuant to which a prisoner is in custody. This reference, and the further reference to direct appellate review, unmistakably concern only the judgment of conviction and cannot be expanded to include an administrative ruling determining the manner in which the sentence will be carried out."). We agree that the word "judgment" in subparagraph (A) refers to the judgment of conviction and sentence and that the words "direct review" refer to the direct appellate review of that judgment. We therefore reject Redd's apparent argument that "judgment" refers to the Board's denial of Redd's administrative appeal and that "direct review" refers to state collateral review.⁷ Accordingly, we hold that subparagraph (A) is inapplicable to Redd's petition.

2. Subparagraph (D)

As noted above, the district court held that the factual predicate of Redd's habeas claims was the Board's denial of Redd's administrative appeal. Redd contends, however, that the factual predicate of his habeas claims was the California Supreme Court's denial of his state habeas petition.⁸ Redd argues that the limitations period should only begin to run after state habeas proceedings are complete because under AEDPA's exhaustion requirement, see § 2254(b)-(c), that is when a state prisoner challenging a parole decision is first eligible to file a federal habeas petition. We reject Redd's argument because the date of the "factual predicate" for Redd's claim under § 2244(d)(1)(D) is not dependent on when Redd complied with AEDPA's exhaustion requirement. Rather, it is determined independently of the exhaustion requirement by inquiring when Redd could have learned of the factual basis for his claim through the exercise of due diligence. We agree with the district court that the factual basis of Redd's habeas claims was the Board's denial of his administrative appeal on December 7, 1998. Redd does not dispute that he received notice of the Board's decision on December 7. The limitations period therefore began to run the following day.

Redd is correct that under AEDPA's exhaustion requirement, see § 2254(b)-(c), a prisoner challenging a parole decision...