Bagdasaryan v. Swarthout

AKOP BAGDASARYAN, Petitioner,

v.GARY SWARTHOUT, et al., Respondents.

No. 2:11-cv-03314-JAM-DAD P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: December 11, 2012

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner incarcerated at the California State Prison - Solano, is proceeding pro se with a petition for a writ of habeas corpus. Petitioner challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole following his January 7, 2010 parole suitability hearing. Before the court is respondent Swarthout's motion to dismiss the petition as untimely and for failure to state a cognizable claim for federal habeas relief. Petitioner has filed an opposition to the motion, respondent has filed a reply and petitioner has filed an unauthorized sur-reply.¹

MOTION TO DISMISS THE PETITION AS UNTIMELY

I. Statute of Limitations Under the AEDPA

Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The AEDPA imposed a one-year statute of limitations on the filing of federal habeas petitions. Title 28 U.S.C. § 2244 provides as follows:

(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;

(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 shall not be counted toward any period of limitation under this subsection.

II. Background

On January 7, 2010, petitioner received a parole suitability hearing.² At that time the Board determined that petitioner was not suitable for parole and that decision became final onMay 7, 2010. (Doc. No. 13-1 at 42.)

On April 27, 2010, petitioner signed his habeas petition filed with the Los Angeles County Superior Court in which he challenged the Board's 2010 decision.³ (Id. at 10.) On July 1, 2010, that petition was denied. (Doc. No. 13-6 at 2.) On August 25, 2919, petitioner signed a proof of service for his "Motion For Rehearing" filed with the California Court of Appeal for the Second Appellate District. (Doc. No. 13-7 at 2 & 18.) On September 22, 2010, the motion, construed by the court as a petition for writ of habeas corpus, was denied by the state appellate court. (Doc. No. 13-9 at 2.) On September 30, 2010, petitioner filed a petition for review with the California Supreme Court. (Doc. No. 13-10 at 2 & 17-18.) On November 23, 2010, that petition was summarily denied. (Doc. No. 13-12 at 2.)

The petition for a writ of habeas corpus pending before this court was signed by petitioner on November 20, 2011, and filed with the U.S. District Court for the Central District of California. On December 14, 2011, this action was transferred to and filed in this court.

III. Parties' Arguments

A. Respondent's Motion to Dismiss

Respondent argues that the statute of limitations for petitioner to seek federal habeas relief began to run on January 8, 2010, one day after the parole consideration hearing he challenges. (Doc. No. 13 at 4.) Respondent contends that on the date of the parole hearing, petitioner became aware of the factual predicate of his claims because that is the date when the Board announced its decision to deny him parole. (Doc. No. 13 at 3.) According to respondent, the statute of limitations for the filing of a federal habeas petition continued to run for 109 days until it was tolled by petitioner's filing of a habeas petition with the Los Angeles Superior Courton April 28, 2010. (Id. at 4.) Tolling of the statute of limitations continued until the California Supreme Court ultimately denied his petition for review on November 23, 2010. (Id.) Respondent contends that petitioner's federal habeas petition was not filed until 378 days later on November 23, 2011, when it was transferred to the U.S. District Court for the Eastern District of California. (Id.) Based upon this calculation (109 + 378 = 487 days - 365 days = 122 days), respondent contends that petitioner's federal habeas petition was filed 122 days after the applicable one-year statute of limitations had expired. (Id.)

B. Petitioner's Opposition

Petitioner asserts that the statute of limitations for his seeking of federal habeas relief in this matter began to run on November 23, 2010, when the California Supreme Court denied his petition for review. (Doc. No. 14 at 2.) Petitioner also contends that his federal habeas petition was filed when he delivered it to prison authorities for mailing and not on the date that it was transferred to this court by the U.S. District Court for the Central District of California. (Id. at 3.) Petitioner refers to the transfer order which he notes advises only that the district of confinement is the preferred forum for the petition and does not state that his federal habeas petition was improperly filed in the Central District. (Id.)

C. Respondent's Reply (Doc. No. 15)

Respondent again argues that the one-year limitations period during which petitioner could seek federal habeas relief began to run from the date the factual predicate for his claims could have been discovered through the exercise of due diligence and that petitioner in fact became aware of the factual predicate for his claims on January 7, 2010, the day of his parole consideration hearing. (Doc. No. 15 at 2.) Thus, according to respondent, the statute of limitations began to run on January 8, 2010. (Id.) Respondent also repeats his contention that the filing of the federal petition in the U.S. District Court for the Central District of California on November 23, 2011, did not toll the statute of limitations because the petition was not properly filed at that time. (Id.) Respondent asserts that the federal statute of limitations was runninguntil December 6, 2011, when the federal petition was transferred to this court. (Id.)

D. Petitioner's Sur-Reply

In his unauthorized sur-reply petitioner contends that an evidentiary hearing is needed to resolve the issues of statutory tolling and whether his federal habeas petition was properly filed. (Doc. No. 16 at 2.) Petitioner argues that the applicable statute of limitations did not begin to run "until Petitioner's State habeas filing became final on February 23, 2011," ninety days after the California Supreme Court denied his petition for review. (Id. at 5.)

IV. Analysis

A. Application of § 2244(d)(1)(D)

The statute of limitations for the seeking of federal habeas relief based upon a challenge to a parole suitability hearing is based on § 2244(d)(1)(D), the date on which the factual predicate of the claim or claims could have been discovered through the exercise of due diligence. Mardesich v. Cate, 668 F.3d 1164, 1171-72 (9th Cir. 2012) (citing Redd v. McGarth, 343 F.3d 1077 (9th Cir. 2003)). "As a general rule, the state agency's denial of an administrative appeal is the 'factual predicate' for such habeas claims." 668 F.3d at 1172. In the context at issue here, "[c]ourts ordinarily deem the factual predicate to have been discovered the day the decision becomes final, i.e., 120 days after the Board finds a petitioner not suitable for parole." Wilson v. Sisto, No. 2:07-cv-00733-MCE-EFB P, 2008 WL 4218487, at *2 (E.D. Cal. Sept. 5, 2008) (citing Nelson v. Clark, No. 1:08-cv-00114-OWW-SMS HC, 2008 WL 2509509, at *4 (E.D. Cal. June 23, 2009)). See also Gonzales v. Swarthout, No. 2:11-cv-01446-GEB-EFB P, 2012 WL 2577545, *1 (E.D. Cal. July 3, 2012) (same); King v. Biter, No. 1:12-cv-00083-LJO-MJS HC, 2012 WL 2559263, at *3 (E.D. Cal. June 29, 2012) (noting that the Ninth Circuit "has not decided whether the triggering event is the initial decision denying parole or the point at which the decision becomes final" and that "the initial, proposed decision cannot logically constitute all the facts constituting reasonable grounds for asserting a claim challenging a parole decision, as the parole decision has yet to be made.").

In reliance on these authorities, the undersigned finds that the factual predicate of his claims became known to petitioner when the parole decision in question became final, which in this case was on May 7, 2010. Thus, the statute of limitations for the filing of a federal habeas petition by petitioner began to run on May 8, 2010. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (concluding that the AEDPA statute of limitations begins to run the day after the act or event which triggers the running of the statute of limitations).

B. Application of § 2244(d)(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 shall not be counted" toward the AEDPA statute of limitations. 28 U.S.C. § 2244(d)(2). The statute of limitations is not tolled during the interval between the date on which a judgment becomes final and the date on which the petitioner files his first state collateral challenge because there is...