Johnson v. Swarthout

PAUL SAMUEL JOHNSON, Petitioner,

v.GARY SWARTHOUT, Respondent.

No. 2:11-cv-2733 KJM KJN P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: July 2, 2012

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a former state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that his due process rights were violated by an April 4, 2009 prison disciplinary violation finding him guilty of threat of force or violence against a public official/peace officer. (Dkt. No. 1 at 4-6.) Pending before the court is respondent's motion to dismiss the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases. Petitioner filed an opposition, and respondent did not file a reply. For the reasons stated below, the court recommends that respondent's motion to dismiss be denied.

II. Background

On April 4, 2009, petitioner was issued a rules violation report for threatening staff pursuant to California Code of Regulations, title 15, section 3003. (Dkt. No. 27-1 at 2.)

On May 8, 2009, petitioner attended a parole revocation hearing for threats against public officials, which was charged under California Code of Regulations, title 15, section 3003. (Dkt. No. 27 at 2.) The Board found that the behavior was improperly classified because correctional officers are not elected officials or other persons described under section 3003. (Id.) The charges were dismissed, but the Board noted that petitioner's threats could have been coded under other sections of the California Code. (Id. at 2-3.)

On May 15, 2009, the rules violation hearing continued, and petitioner appeared. (Dkt. No. 27-1 at 5.) Petitioner was informed that the evidence given in the disciplinary report also justified the charges of threatening staff under § 3005, and petitioner was offered a postponement of 24 hours to consider this additional information. (Id.) Petitioner waived any delay, stating that he understood the reports as well as these charges, and that he was prepared to begin the hearing. (Id.) Petitioner also stated that the Board "had already explained to him that the CCR of 3003 on his [rules violation report] should have been 3005." (Id.) Petitioner was found guilty of threat of force or violence against a public official/peace officer under an alternative section, California Code of Regulations, title 15, section 3005, and assessed a 150-day credit forfeiture. (Dkt. No. 27-1 at 5.)

On February 7, 2010, petitioner appealed the rules violation. (Dkt. No. 27-1 at 10.) The appeal was denied in a Director's Level Decision issued July 28, 2010. (Id. at 15.)

On March 2, 2011,¹ petitioner filed a petition for writ of habeas corpus in the Kings County Superior Court, alleging due process violations in connection with the rules violation. (Dkt. No. 27-1 at 18-23.) On May 27, 2011, the petition was transferred to the Marin County Superior Court, because the petition should have been filed in the county of petitioner's incarceration where the alleged incidents occurred. (Dkt. No. 27-1 at 116.)

The petition for writ of habeas corpus was filed in the Marin County Superior Court on June 7, 2011. (Dkt. No. 27-1 at 18.) On July 1, 2011, the Marin County Superior Court denied the petition, stating petitioner failed to state a prima facie case for relief, citing People v. Duvall, 9 Cal. 4th 464, 474 (1995).²

Petitioner did not file a petition in the California Court of Appeals.

Petitioner filed a petition for writ of habeas corpus³ in the California Supreme Court on August 24, 2011. (Dkt. No. 27-2 at 2-8.) On September 21, 2011, the California Supreme Court denied the petition without comment. (Dkt. No. 1 at 19; 27-2 at 97.)

The instant petition was filed on October 13, 2011. (Dkt. No. 1 at 7.)

III. Legal Standards

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4, Rules Governing Section 2254 Cases; see also White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (meritorious motions to dismiss permitted under Rule 4); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 "explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated"). However, a petition for writ of habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). "Summary dismissal is appropriate only where the allegations are vague [or] conclusory or palpably incredible, . . . or patently frivolous or false." Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (internal quotations and citations omitted).

IV. Statute of Limitations

Petitioner challenges a rules violation report received for threatening a correctional officer. Respondent argues that only petitioner's dispute over whether there is some evidence to support the guilty disciplinary finding is a proper federal claim, but that claim is barred by the statute of limitations.

The AEDPA was enacted on April 24, 1996. Section 2244(d)(1) of Title 8 of the United States Code provides:

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.

28 U.S.C. § 2244(d)(1). Section 2244(d)(2) provides that "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 limitations period. 28 U.S.C. § 2244(d)(2).

The limitation period is statutorily 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 . . . ." 28 U.S.C. § 2244(d)(2). A state petition is "properly filed," andqualifies for statutory tolling, if "its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000).

In the present case, the final decision on petitioner's administrative challenge to his prison disciplinary conviction was issued on July 28, 2010. (Dkt. No. 2-1 at 15.) Thus, AEDPA's one-year limitation period commenced the following day, on July 29, 2010. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (citing Fed. R. Civ. P. 6(a) ("exclude the day of the event that triggers the period")). Therefore, absent statutory or equitable tolling, petitioner's federal habeas petition was due on or before July 29, 2011. Patterson, 251 F.3d at 1246.

In accordance with the tolling provisions of 28 U.S.C. § 2244(d)(2), petitioner was "entitled to tolling of the one-year limitations period for those time periods during which his 'properly filed' state habeas petitions were 'pending.'" Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007). The period between the denial of a state petition and the timely filing of a subsequent petition in a higher court is also tolled. See Evans v. Chavis, 546 U.S. 189, 191 (2006); Carey v. Saffold, 536 U.S. 214, 223 (2002). Under California law, prisoners seeking relief on collateral review file timely if the document is filed within a "reasonable time." Evans, 546 U.S. at 192, citing In re Harris, 5 Cal. 4th 813, 828, n.7 (1993); see also Carey v. Saffold, 536 U.S. at 221.

Petitioner filed a petition in Kings County on March 2, 2011. However, because that petition was improperly filed in the wrong court, petitioner is not entitled to statutory tolling. Artuz, 531 U.S. at 8; Hood v. Galaza, 47 F.Supp.2d 1144, 1147 (S.D. Cal. 1999). Thus, the limitations period ran from July 29, 2010, until June 7, 2011, when petitioner's first state habeas petition was filed in Marin County Superior Court. By June 7, 2011, 313 days of the limitations period had elapsed.

Respondent argues that petitioner is not entitled to statutory tolling for the 60 day delay between the July 1 denial and petitioner's filing in the California Supreme Court.However, respondent did not give petitioner the benefit of the mailbox rule. The Marin County Superior Court denied the petition on July 1, 2011. Under the mailbox rule, petitioner filed his next petition in the California Supreme Court 54 days later, on August 24, 2011. In Evans, the court stated that a petitioner must not unreasonably delay more than 30 to 60 days in filing a petition without explanation. Id., 546 U.S. at 192-93. Because petitioner's filing fell within the 60 day period, petitioner is entitled to tolling for the gap between these filings. Thus, the limitations period was tolled from June 7, 2011, until September 21, 2011, when the California Supreme Court denied the petition, and petitioner had 52 days left to file a federal petition.

The limitations period began to run again on September 22, 2011. Twenty-one days later, on October 13, 2011, under the mailbox rule, petitioner filed the instant petition. Thus, the petition was timely-filed, and re...