Turner v. Cate

STEPHEN B. TURNER, Petitioner,

v.MATTHEW CATE, et al., Respondent.

No. C 11-4948 YGR (PR)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Dated: September 5, 2012

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION AS UNTIMELY;

DENYING CERTIFICATE OF APPEALABILITY; AND TERMINATING REMAINING PENDING MOTIONS AS MOOT

(Docket Nos. 9, 10, 13, 14, 24)

INTRODUCTION

Petitioner Stephen B. Turner, a California parolee, filed a pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Pet."). Before the Court is Respondent's motion to dismiss ("MTD") the instant petition as untimely under 28 U.S.C. § 2244(d) -- the statute of limitations set by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). In the alternative, Respondent argues that the petition should be dismissed because it fails to state a federal question.

Having considered all of the papers filed by the parties, the Court GRANTS Respondent's motion to dismiss the petition as untimely.

BACKGROUND

In 1984, Petitioner pleaded nolo contendere to misdemeanor indecent exposure. (Pet. at 4.) He was not required to register as a sex offender. (Id.) In 1986, he was discharged from probation upon request, and the state court dismissed the conviction. (Id.)

In 1993, Petitioner was convicted of misdemeanor indecent exposure and was fined and sentenced to thirty days work release and a three-year term of probation. (Id.) In 1996, after his probation was complete, the 1993 conviction was expunged. (Id.)

In 2006, Petitioner pleaded guilty to five non-sex related felony charges. (Id.) He was sentenced to a term of seven years and eight months in state prison. (Id.) He was also subsequently required to register as a sex offender. (Id. at 4-5.)

Effective November 8, 2006, California enacted "Jessica's Law." Jessica's Law prohibits registered sex offenders from residing within 2000 feet of a public or private school or park wherechildren regularly gather. Cal. Penal Code § 3003.5(b). The California legislature also enacted Penal Code § 290.007 which imposes mandatory registration on sex offenders. (Pet. at 12.)

On January 5, 2010, Petitioner was released from Avenal State Prison. (Id.) Upon his release, Petitioner complied with the sex offender registration requirement. (Id.) However, as explained below, Petitioner's parole was eventually revoked a total of four times for failure to comply with the Jessica's Law residency restriction. (Id. at 5.)

On January 11, 2010, Petitioner filed a state habeas petition in the Alameda County Superior Court challenging the Jessica's Law residency restriction. (MTD, Ex. 5.) On May 27, 2010, the state superior court denied the petition. (MTD, Ex. 7.)

On February 23, 2011, Petitioner filed state habeas petition in the California Court of Appeal challenging both the Jessica's Law residency restriction and the registration requirement for sex offenders. (MTD, Ex. 3.) On May 4, 2011, the state appellate court denied the petition. (MTD, Ex. 8.)

On August 16, 2011, Petitioner filed a state habeas petition in the California Supreme Court. (MTD, Ex. 9.) On August 31, 2011, the state supreme court denied his petition. (MTD, Ex. 10.)

On October 6, 2011, Petitioner filed the instant petition. (Docket No. 1.)

On February 10, 2012, Respondent filed his motion to dismiss the petition as untimely and for failing to state a federal question. (Docket No. 14.)

On February 21, 2012, Petitioner filed his opposition ("Opp'n"). (Docket No. 16.) On March 7, 2012, Respondent filed his reply to the opposition. (Docket No. 19.)

DISCUSSION

AEDPA, which became law on April 24, 1996, imposed a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest date on which: (A) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (B) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (C) the constitutional right asserted wasrecognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (D) the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1).

Section 2244's one-year limitations period applies to all habeas petitions filed by persons in "custody pursuant to the judgment of a State court," even if the petition challenges a pertinent administrative decision rather than a state court judgment. See Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004). The custody requirement does not require that a prisoner be physically confined. Maleng v. Cook, 490 U.S. 488, 491 (1989). A petitioner who is on parole at the time of filing is considered to be in custody, see Jones v. Cunningham, 371 U.S. 236, 241-43 (1963); Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990), as is a petitioner on probation, see Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005); cf. United States v. Span, 75 F.3d 1383 n.5 (9th Cir. 1996) (probation establishes custody for purposes of 28 U.S.C. § 2255).

Petitioner argues that § 2244(d)(1)(A) is the applicable standard for the resolution of his claims. (Opp'n at 5). As such, he argues that the limitations period began to run ninety days after the California Supreme Court's denial of his state habeas petition. (Id. at 6.) Petitioner erroneously relies on case law dealing with habeas petitions challenging the civil commitment of sexually violent predators to support this assertion. (See id. (citing Martin v. Bartow, 621 F. Supp. 2d 666, 667 (W.D. Wis. 2009) rev'd, 628 F.3d 871 (7th Cir. 2010) (holding that petitioner's habeas petition challenging initial civil commitment was time barred).) This case law is irrelevant to Petitioner's claims. Additionally, Petitioner relies on the case law dealing with habeas petitions challenging initial convictions to support his assertion that § 2244(d)(1)(A) applies to his claims. (Opp'n at 6.) Again, this case law is irrelevant to Petitioner's claims because he is challenging the conditions of his parole and not his actual conviction. (Id.)

For prisoners challenging the denial of parole, § 2244(d)(1)(D) applies. Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003). In Redd, the Ninth Circuit Court of Appeals held that the factual predicate of a parole denial becomes discoverable when the decision becomes final. 343 F.3d at 1079. Therefore, the Court finds that § 2244(d)(1)(D) also applies when prisoners likePetitioner -- challenge conditions of parole. Pursuant to § 2244(d)(1)(D), the limitations period begins to run when the factual predicate of the claim could have been discovered through the exercise of due diligence.

The one-year period is calculated according to the general rule for counting time in federal courts, Rule 6(a) of the Federal Rules of Civil Procedure. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). That is, "the day of the act, event, or default from which the designated period of time begins to run shall not be included" in the one-year limitations period. Fed. R. Civ. P. 6(a). This is referred to as the "anniversary method" because, absent any tolling, the expiration date of the limitations period will be the same date as the triggering event in the following year. Patterson, 251 F.3d at 1246.

In the present case, Petitioner is a California parolee and is therefore in custody for the purposes of AEDPA. (Pet. at 6.) As mentioned above, because he is challenging his conditions of parole, the limitations period under AEDPA began to run when the factual predicate of his claims could have been discovered through due diligence pursuant to § 2244(d)(1)(D).

Petitioner was released from prison on January 5, 2010. (Reply at 3.) Respondent contends that the limitations period on Petitioner's registration requirement claim began to run one day later on January 6, 2010. (Id. at 4.) However, Petitioner alleges that the limitations period on his registration requirement claim began to run on the date that he first registered after being released from prison. (Opp'n at 5.) Petitioner alleges that he registered within one week of being released from prison, i.e., seven days after January 5, 2010 -- January 12, 2010. (Id.) The Court will use the latest date, January 12, 2010, as the date that the factual predicate of Petitioner's registration requirement claim arose. Thus, the limitations period on Petitioner's registration requirement claim began to run one day later on January 13, 2010. Therefore, Petitioner was required to file a federal habeas corpus petition no later than January 13, 2011 with respect to his registration requirement claim. See 28 U.S.C. § 2244(d).

Meanwhile, Petitioner was first given notice of the Jessica's Law residency restriction on January 6, 2010, which is the date that the factual predicate of this claim arose. (MTD, Ex. 6.) Thelimitations period on Petitioner's residency restriction claim began to run one day later on January 7, 2010. Therefore, Petitioner was required to file a federal habeas corpus petition no later than January 7, 2011 with respect to his residency restriction claim.

Here, Petitioner filed the instant federal habeas corpus petition on October 6, 2011 -- nine months after the limitations period had expired for both claims. The petition is therefore untimely unless Petitioner can show that he is entitled to tolling.

I. Statutory Tolling

A petition may nonetheless be timely if the limitations period was tolled under 28 U.S.C. § 2244(d)(2) for a substantial period of time. AEDPA's one-year limitations period is tolled under § 2244(d)(2) for the "'time during which a properly filed application for State post-conviction or other collateral review [with respect to the...