Chappell v. Gipson

REX CHAPPELL, Petitioner, v. CONNIE GIPSON, Respondent.

Case No. 1:13-cv-00892-LJO-BAM-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: February 27, 2014

FINDINGS AND RECOMMENDATIONS TO

GRANT RESPONDENT'S MOTION TO

DISMISS THE PETITION (DOC. 15),

DISMISS THE PETITION AS UNTIMELY

(DOC. 1), ENTER JUDGMENT FOR

RESPONDENT, AND DECLINE TO ISSUE A

CERTIFICATE OF APPEALABILITY

OBJECTIONS DEADLINE:

THIRTY (30) DAYS

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 through 304. Pending before the Court is the Respondent's motion to dismiss the petition as untimely and as failing to state facts entitling Petitioner to relief in a proceeding pursuant to § 2254. The motion was filed on November 12, 2013, with supporting exhibits. Petitioner filed opposition on January 21, 2014; Respondent filed a reply on January 30, 2014; and Petitioner filed an unsolicited sur-reply on February 7, 2014.¹

I. Proceeding by a Motion to Dismiss

Respondent has filed a motion to dismiss the petition on the ground that Petitioner filed his petition outside of the one-year limitation period provided for by 28 U.S.C. § 2244(d)(1).

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (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) (using Rule 4 to evaluate a motion to dismiss a petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to review a 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 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). The material facts pertinent to the motion are found in copies of theofficial records of state 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 a motion to dismiss for failure to exhaust state remedies or for state procedural default, the Court will review Respondent's motion to dismiss pursuant to its authority under Habeas Rule 4.

II. Background

Documentation attached to the petition shows that as of February 10, 2012, Petitioner was serving forty-four years for multiple cases from multiple counties. (Pet., doc. 1, 141.)

Petitioner contends that he suffered a violation of the protection against ex post facto laws when the California Department of Corrections and Rehabilitation (CDCR) applied to him changes to Cal. Pen. Code §§ 2933 and 2933.6 that took effect on January 25, 2010. The new law prohibited inmates who were in a security housing unit because of validation as a gang member or commission of violent offenses from earning credits pursuant to Cal. Pen. Code § 2933 or 2933.05 during the time they were so housed. Petitioner alleges that he was validated as a member of a prison gang in April 2010 and that the prison increased the duration of his term by five years based on the new statute. (Id. at 21, 7-8.) Petitioner also alleges that the application of the statute to a prisoner such as Petitioner who committed his commitment offenses before the enactment of the new statute constitutes double jeopardy and violates his rights to equal protection of the law and a jury trial. Petitioner also argues that the state legislature did not intend for the new statuteto apply to Petitioner. Petitioner complains that it changed Petitioner's ability to earn credit and caused the CDCR to take credit that Petitioner had already earned over his thirty-one years of incarceration. (Id. at 8.) Petitioner claims that the time was taken without his being told and without his having the right to present his views in a classification committee hearing or to be heard; rather, Petitioner was simply mailed a new calculation worksheet. Petitioner further complains that although a state court ordered credit of about 1,906 days restored to him, it was not done. (Id. at 13.) He also claims a violation of ex post facto principles based on application to him of a post-offense state court decision making sentences for offenses committed in prison fully consecutive to the commitment offense/s.

In the motion to dismiss the petition, Respondent contends that Petitioner's petition was untimely filed, and in any event the facts alleged in the petition do not entitle Petitioner to relief in a proceeding pursuant to § 2254. Petitioner alleges that he is entitled to tolling of the statute of limitations and that he suffered a violation of rights protected by the Ex Post Facto Clause.

III. Timeliness of the Petition

A. The Running of the Statute of Limitations

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).

The AEDPA provides a one-year period of limitation in which apetitioner must file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, 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 appicable 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.

28 U.S.C. § 2244(d).

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 or parole authorities. Shelby v. Bartlett, 391 F.3d 1061, 1063, 1065-66 (9th Cir. 2004). However, § 2244(d)(1)(A) is inapplicable toadministrative decisions; rather, § 2244(d)(1)(D) applies to petitions challenging such decisions. Redd v. McGrath, 343 F.3d 1077, 1081-82 (9th Cir. 2003) (parole board determination).

Title 28 U.S.C. § 2244(d)(1)(D) provides in pertinent part that the "limitation period shall run from the latest of... the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Thus, under § 2244(d)(1)(D), the statute of limitations begins to run when the factual predicate of a claim "could have been discovered through the exercise of due diligence," not when it actually was discovered. 28 U.S.C. § 2244(d)(1)(D); Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012). The diligence required is not maximum feasible diligence, but rather reasonable diligence in the circumstances. Id. Although due diligence is measured by an objective standard, a court will also consider the petitioner's particular circumstances, including both impediments and resources that would affect discovery of the facts, such as physical confinement, familial assistance, and any representations made by the government. Id. at 1235-36. A later accrual date results only if vital facts could not have been known by the date the appellate process ended; however, when a person knows or through reasonable diligence could discover the vital facts, the time starts running regardless of when the legal significance of the facts is actually discovered. Id. at 1235.

A habeas petitioner has the burden to prove that he or she exercised due diligence in discovering the factual predicate for hisor her claim in order for the statute of limitations to begin running from the date he or she discovered the factual predicate of the claim. See Majoy v. Roe, 296 F.3d 770, 777 n.3 (9th Cir. 2002).

Thus, in the present case, the statute begins to run on the date that the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(D); Redd v. McGrath, 343 F.3d at 1082. In Redd v. McGrath, the court concluded that the factual predicate of the habeas claims concerning the denial of parole was the parole board's denial of the prisoner's...