Opinion
CASE NO. 05cv0786 DMS (LSP).
December 15, 2005
Petitioner Robert John Garcia, a state prisoner proceeding pro se, petitions this Court for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Honorable Leo S. Papas, United States Magistrate Judge, has issued a Report and Recommendation ("RR") pursuant to 28 U.S.C. § 636(b)(1) and Civ.L.R.HC.2, recommending that the Court deny Petitioner's writ of habeas corpus. Having considered all of the relevant pleadings, the applicable law, and the RR, the Court adopts Judge Papas' recommendation and dismisses Petitioner's application for writ of habeas corpus. In addition, the Court denies Petitioner's motion for an evidentiary hearing.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 18, 1974, Petitioner was convicted of one count of first degree murder and one count of second degree murder. Petitioner was given concurrent sentences. After Petitioner served a minimum term, he became eligible for parole consideration. On January 23, 1996, the Board of Prison Terms conducted a Parole Consideration Hearing and found Petitioner unsuitable for parole.On April 5, 2001, Petitioner filed a petition for writ of habeas corpus with the Superior Court challenging the Board of Prison Terms' decision. The Superior Court denied the petition on June 28, 2001.
Petitioner subsequently filed a petition for writ of habeas corpus with the California Court of Appeal. The Court of Appeal denied that petition on August 2, 2001.
On September 6, 2001, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court. On March 27, 2002, the petition was denied.
On June 5, 2002, Petitioner filed a petition for writ of habeas corpus in the United States District Court for the Central District of California. On July 2, 2002, the district court denied the petition without prejudice as a successive petition, noting that the application before the court was Petitioner's fifteenth petition.
On November 23, 2004, the Ninth Circuit reversed the decision of the district court and remanded the case for further proceedings. ( See Garcia v. Woodford, 118 Fed.Appx. 156 (9th Cir. 2004)).
On March 28, 2005, Petitioner's case was transferred from the United States District Court for the Central District of California to this court. Thereafter, the current Petition, Answer, and Traverse were assigned to United States Magistrate Judge Leo S. Papas. On June 3, 2005, Respondent filed a Superseding Answer to Petitioner's petition. Petitioner filed a Supplemental Traverse on June 30, 2005.
On July 11, 2005, the Magistrate issued a RR, recommending that this court deny the petition for writ of habeas corpus. Petitioner filed an objection to the RR on August 2, 2005. Subsequently, on August 4, 2005, Petitioner filed a motion for an evidentiary hearing.
II. REVIEW OF RR: LEGAL STANDARD
The duty of the district judge regarding the review of an RR is set forth in Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1). Where objections are filed, Section 636(b)(1) directs the district judge to review de novo "those portions" of the RR to which objections have been made. See Hunt v. Pliler, 384 F.3d 1118, 1124-25 (9th Cir. 2004). The district judge may then accept, reject, or modify, in whole or in part, the magistrate judge's findings and recommendations. 28 U.S.C. § 636(b)(1).However, as to those portions of the RR to which no objections have been made, the district judge may assume the correctness of the magistrate judge's findings and recommendations. See U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) ("the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.") (emphasis in original). See also Thomas v. Arn, 474 U.S. 140, 149-52 (1985) ("It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings."). A failure to object is deemed a sort of "procedural default," waiving the party's right to review by the district judge. Id. at 151.
III. DISCUSSION
In his petition for writ of habeas corpus, Petitioner raises two claims for relief. First, Petitioner contends he has been administratively discriminated against and deprived of a statutory and state created liberty interest procedure in Department of Corrections, Directive No. 75/30. (RR at 3-4.) In his second claim for relief, Petitioner contends he should have been discharged from the California Department of Corrections pursuant to Cal. Code. Regs. Title 15, § 2000(B)(2) (2005) and Cal. Pen. Code § 1170.2(a)-(b). ( Id.)
A. AEDPA's One-Year Statute of Limitations
Respondent argues that the Petition is barred by the Antiterrorism and Effective Death Penalty Act's ("AEDPA") statute of limitations. Provisions of AEDPA apply to habeas petitions filed in federal court after AEDPA's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320 (1997). Because the present Petition was filed on June 5, 2002, AEDPA applies to this case.
Before the passage of AEDPA, prisoners had "almost unfettered discretion in deciding when to file a federal habeas petition." Calderon v. U.S. Dist. Ct., 128 F.3d 1283, 1286 (9th Cir. 1997), cert. denied, 118 U.S. 897 (1998), overruled on other grounds by Calderon v. U.S. Dist. Ct, 163 F.3d 530, 540 (9th Cir. 1998). After passage of AEDPA, the time for state prisoner's seeking federal habeas relief was drastically limited. AEDPA amended 28 U.S.C. § 2244 in part, by adding subdivision (d), which mandates a one-year limitation period for state prisoners to file habeas petitions in federal court. Section 2244(d) provides:
(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.28 U.S.C. § 2244(d) (West Supp. 2003).
For federal habeas petitions challenging post-conviction issues such as parole decisions, the Ninth Circuit has held that the statute of limitations begins to run after the date the factual predicate could have been discovered. Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004); Redd v. McGrath, 343 F.3d 1077, 1082-85 (9th Cir. 2003). Under AEDPA, Petitioner would have had until January 24, 1996 — one year after his parole decision became final — to file his petition for writ of habeas corpus.
However, for petitioners whose judgments became final before the effective date of AEDPA, the AEDPA statute of limitations begins to run from the effective date of the statute. In such instances, petitioners had until April 24, 1997 to file a timely petition in federal court. Here, because the decision of the Board of Prison Terms became final four months prior to the enactment of AEDPA, Petitioner had until April 24, 1997 to file a timely petition, absent any legitimate reason to toll the limitations period. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
"The AEDPA statute of limitations is tolled for `all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.'" Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000), quoting Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999). However, the statute of limitations is not tolled from the time of the final decision of direct state appeal to the time of the first state collateral challenge, because there is no case "pending" during that interval. Galaza, supra, 183 F.3d at 1006.
Petitioner's first petition in the State court for post-conviction relief was filed on April 5, 2001. Thus, even considering the effective date of AEDPA as the one-year statute of limitations start date, Petitioner filed his petition 1442 days — nearly four years — after the statute of limitations had expired. Moreover, since the petition for writ of habeas corpus in the state court was not filed until after the expiration of the AEDPA statute of limitations, that state petition did not toll the statute for purposes of filing in federal court. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); see also Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000). Tolling merely pauses the statute of limitations clock; it does not restart the limitations period. Id.
Petitioner relies upon Rosa v. Senkowski, 148 F.3d 134 (2d Cir. 1998), for the proposition that his claim is timely. In Rosa, the Second Circuit held that AEDPA does not bar habeas petitions filed within one year of effective date of AEDPA, even when the petition is filed more than ten years after conviction becomes final. Id. at 135-36. Here, however, Petitioner failed to file his petition within one year of the effective date of AEDPA. Accordingly, Petitioner cannot now argue that his claim is timely.
B. Equitable Tolling
In the RR, the Magistrate Judge concluded that AEDPA's equitable tolling provision did not apply to the present case. Petitioner raises no specific objections to this finding.
AEDPA's one-year statute of limitations is subject to equitable tolling. Redd, 343 F.3d at 1081 (quoting Stillman v. LaMarque, 319 F.3d 1199, 1202 (9th Cir. 2003)). However, equitable tolling is appropriate only if "`extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.'" Redd, 343 F.3d at 1081 (citation omitted). The Ninth Circuit also cautioned that district judges must "take seriously Congress's desire to accelerate the federal habeas process" and "only authorize extensions when this high hurdle is surmounted." Calderon, supra, 128 F.3d at 1289.
Here, Petitioner fails to present any "extraordinary circumstances," or otherwise offer any facts to warrant equitable tolling of the statute of limitations. Accordingly, Petitioner's application for writ of habeas corpus is untimely.
C. Evidentiary Hearing
Petitioner also requests that this Court grant his request for an evidentiary hearing. Because Petitioner's motion was filed after the United States Magistrate Judge issued a RR for the underlying matter, we review for the first time Petitioner's request for an evidentiary hearing.
Before the enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), district courts enjoyed considerable discretion regarding a habeas petitioner's request for an evidentiary hearing. See Baja v. Ducharme, 187 F.3d 1075, 1077 (9th Cir. 1999) (citing Cardwell v. Greene, 152 F.3d 331, 336-340 (4th Cir. 1998), cert. denied, 525 U.S. 1037 (1998)). In accordance with Rule 8(a) of the Rules Governing § 2254 cases, an evidentiary hearing was available where an applicant had alleged facts which, if proved, would entitle him to relief. See Townsend v. Sain, 372 U.S. 293, 312-13 (1963). If it was further shown that the habeas applicant did not receive a full and fair evidentiary hearing in a State court, a federal evidentiary hearing was mandatory. Townsend, 372 U.S. at 313. To this end, the Court specified six circumstances in which a hearing was required: (1) if the merits of the factual dispute were not resolved in the State hearing; (2) if the state factual determination is not fairly supported by the record; (3) if the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; (4) if there is a substantial allegation of newly discovered evidence; (5) if the material facts were not adequately developed at the State court hearing; or (6) if for any reason it appears that the State trier of fact did not afford the habeas applicant a full and fair fact hearing. Id. at 312. In Keeney v. Tamayo-Reyes, the Supreme Court clarified that an evidentiary hearing was required only if the petitioner could show cause for his failure to develop the facts in State court proceedings and actual prejudice resulting from that failure. Keeney v. Tamayo-Reyes, 504 U.S. 1, 11 (1992).
After the enactment of AEDPA, Congress narrowed the availability of evidentiary hearings in federal habeas cases. Today, a habeas petitioner seeking an evidentiary hearing in federal court must clear the "initial hurdle" of 28 U.S.C. § 2254(e)(2). McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998). Section 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2). Thus, after AEDPA, a federal court's first task in determining whether to grant an evidentiary hearing is to ascertain whether the petitioner "has failed to develop the factual basis of a claim in State court proceedings." See Cardwell v. Greene, 152 F.3d at 337. If so, the court must deny a hearing unless one of the two exceptions set forth in Section 2254(e)(2)(A) (B) has been met. Id. "If, on the other hand, the applicant has not `failed to develop' the facts in state court, the district court may proceed to consider whether a hearing is appropriate, or required, under Townsend." Id.
Here, Petitioner has not "failed to develop" the factual bases of any of his claims in State court proceedings. Thus, the Court may consider the propriety of an evidentiary hearing under the pre-AEDPA standard of Townsend and its progeny. See Baja, 187 F.3d at 1078. Under the Townsend standard, however, the Court denies Petitioner's request for an evidentiary hearing. Quite simply, Petitioner has alleged no facts which, if proved, would entitle him to relief.
IV. CONCLUSION
For the reasons stated above, the Court ADOPTS the findings, conclusions and recommendations contained in the Magistrate Judge's RR and DISMISSES the petition for writ of habeas corpus with prejudice. The Court also DENIES Petitioner's motion for an evidentiary hearing. The Clerk of the Court shall enter judgment accordingly.IT IS SO ORDERED.