Sok v. Substance Abuse Training Facility, 1:11-cv-00284-JLT HC

• Decision Date: 16 August 2011
• Docket Number: 1:11-cv-00284-JLT HC
• Parties: DIMARK SOK, Petitioner, v. SUBSTANCE ABUSE TRAINING FACILITY, Respondent. ,
• Court: U.S. District Court — Eastern District of California

DIMARK SOK, Petitioner,

v.SUBSTANCE ABUSE TRAINING FACILITY, Respondent. ,

1:11-cv-00284-JLT HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: August 16, 2011

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS THE PETITION

FOR VIOLATION OF THE ONE-YEAR STATUTE OF LIMITATIONS (Doc. 1)

ORDER DIRECTING CLERK OF THE COURT TO ENTER JUDGMENT AND CLOSE THE CASE

ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

PROCEDURAL HISTORY

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The instant federal petition for writ of habeas corpus was filed on January 21, 2011.¹ Petitioner raises three grounds for relief: (1) ineffective assistance of counsel inhis state conviction; (2) failure of the California Department of Corrections and Rehabilitations ("CDCR") to follow their own rules and regulations regarding referral of prison disciplinary proceedings for state prosecution; and (3) violation of his due process and equal protection rights during his state trial. (Doc. 1).

On April 18, 2011, the Court ordered Respondent to file a response. (Doc. 8). On June 17, 2011, Respondent filed the instant motion to dismiss, contending that the three claims in the instant petition were untimely and unexhausted, and also that Ground Two did not invoke the Court's habeas jurisdiction. (Doc. 13). On July 5, 2011, Petitioner filed his opposition. (Doc. 15). On August 12, 2011, Respondent filed a Reply. (Doc. 18).

On March 10, 2011, Petitioner filed his written consent to the jurisdiction of the United States Magistrate Judge for all purposes. (Doc. 7). On May 17, 2011, Respondent filed a written consent to the jurisdiction of the United States Magistrate Judge for all purposes. (Doc. 11).

DISCUSSION

A. Procedural Grounds for Motion to Dismiss

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) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); 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, inter alia, on a violation of 28 U.S.C. 2244(d)(1)'s one-year limitation period and a failure to exhaust state remedies. 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 because Respondent has not yet filed a formal Answer, the Court will review Respondent's Motion to Dismiss pursuant to its authority under Rule 4.

B. Limitation Period for Filing a Petition for Writ of Habeas Corpus

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 21, 2011, and thus, it is subject to the provisions of the AEDPA.

The AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, subdivision (d) reads:

(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;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral 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.

(2) The 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 shallnot be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

1. Time Period For Grounds One and Three.

Grounds One and Three challenge Petitioner's state court conviction, while Ground Two challenges the California Department of Corrections and Rehabilitation's decision to refer Petitioner's prison disciplinary violation for state criminal prosecution. Since Respondent is correct that, under the AEDPA, the one-year time period commences on a different date depending on whether a petitioner is challenging his conviction or a prison administrative decision, the Court will analyze the running of the AEDPA one-year period separately for Ground Two as distinct from Grounds One and Three.

In most cases, the limitation period begins on the date that the petitioner's direct review became final. Here, judgment was rendered on August 7, 2008, when Petitioner pleaded nolo contendere in the Kings County Superior Court to assault on an inmate with a deadly weapon, resulting in a determinate sentence of twelve years. (Lodged Document ("LD") 1). Petitioner did not file an appeal. California state law governs the period within which prisoners have to file an appeal and, in turn, that law governs the date of finality of convictions. See, e.g., Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006); Lewis v. Mitchell, 173 F.Supp.2d 1057, 1060 (C.D. Cal. 2001)(California conviction becomes final 60 days after the superior court proceedings have concluded, citing prior Rule of Court, Rule 31(d)). Pursuant to California Rules of Court, Rule 8.308(a), a criminal defendant convicted of a felony must file his notice of appeal within sixty days of the rendition of judgment. See People v. Mendez, 19 Cal.4th 1084, 1086, 969 P.2d 146, 147 (1999)(citing prior Rule of Court, Rule 31(d)). Because Petitioner did not file a notice of appeal, his direct review concluded on October 6, 2008, when the sixty-day period for filing a notice of appeal expired. The one-year period under the AEDPA would have commenced the following day, on October 7, 2008, and Petitioner would have had one year from that date, or until October 6, 2009, within which to file his federal petition for writ of habeas corpus as to Grounds One and Three, which challenge Petitioner's state conviction. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir.2001).

2. Time Limit For Ground Two.

In a situation where the petitioner is challenging a prison administrative or disciplinary action, 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)(holding 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)(holding that the statute of limitation does not begin to run until a petitioner's administrative appeal has been denied).

Here, Petitioner's administrative appeal of Ground Two was denied at the final level of administrative review on October 23, 2008; however, Petitioner contends that he did not receive notice of this denial until December 5, 2008. (Doc. 1, p. 30). Accordingly, giving Petitioner the benefit of all doubt, the Court will consider that the one-year period for Ground Two commenced on the day after he was notified, i.e., on December 6, 2008, and that it expired one year later, i.e., on December 5, 2009.

As mentioned, the instant petition was filed on January 21, 2011, approximately fifteen months after the date the one-year period would have expired as to Grounds One and Three, and approximately thirteen months after the limitation period would have expired for Ground Two. Thus, unless Petitioner is entitled to either statutory or equitable tolling, the three claims in the instant petition are untimely.

C. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2)

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 petiti...