Free Response to Habeas Petition - District Court of California - California

Case 3:07-cv-02131-W-BLM

Document 8

Filed 02/19/2008

Page 1 of 9

1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 JULIE L. GARLAND Senior Assistant Attorney General 4 HEATHER BUSHMAN Supervising Deputy Attorney General 5 CHARLES CHUNG, State Bar No. 248806 Deputy Attorney General 6 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 7 Telephone: (213) 897-4908 Fax: (213) 897-2263 8 Email: [email protected] 9 Attorneys for Respondent Robert J. Hernandez, Warden, R. J. Donovan Correctional Facility 10 11 12 13 14 15 16 17 18 19 20 21 22 Respondent Robert J. Hernandez, Warden of the R. J. Donovan 23 Correctional Facility,1/ submits this Answer to the Petition for Writ of Habeas 24 Corpus filed by Petitioner Anthony Arceo. Respondent denies all allegations set 25 forth in the Petition and makes the following assertions: 26 27 1. The Petition names Robert Ayers as the Respondent; however, the proper Respondent is Robert J. Hernandez, the warden of the facility in which Arceo is 28 incarcerated. 1 v. ROBERT AYERS, Warden, Respondent. ANTHONY A. ARCEO, Petitioner, CV 07-2131-W (BLM) ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANSWER Courtroom: Judge: 5 The Honorable Barbara L. Major IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

Case 3:07-cv-02131-W-BLM

Document 8

Filed 02/19/2008

Page 2 of 9

1

1. Arceo is properly in the custody of the California Department of

2 Corrections and Rehabilitation (Department) serving a sentence of thirty-one years 3 for one count of kidapping with intent to commit rape, one count of forcible oral 4 copulation, and two counts of rape by foreign object. (Lodg. 1.) Arceo does not 5 challenge the validity of his convictions or of his imposed sentence. Rather, Arceo 6 challenges the Department's revocation of certain good-time credits after he was 7 convicted of serious disciplinary violations. 8 2. Respondent denies Arceo exhausted his state court remedies and

9 asserts Arceo procedurally defaulted on his claims. Arceo filed a habeas corpus 10 petition in the Kern County Superior Court on December 1, 2006. (Lodg. 2.) The 11 superior court denied relief for untimeliness and failure to exhaust administrative 12 remedies. (Lodg. 3, pp. 25-26.) The superior court rejected Arceo's proposed 13 justification for the delay in presenting his claims. (Lodg. 3, p. 26.) Arceo sought 14 relief from the Fifth Appellate District of California, but the court denied his 15 petition without comment or citation. (Lodgs. 4-5.) On April 9, 2007, Arceo filed 16 a petition for review in the California Supreme Court, but the petition was returned 17 as unfiled because the time for seeking review had lapsed. (Lodg. 6.) 18 3. Respondent denies the Petition was timely filed within the one-year

19 limitations period of 28 U.S.C. § 2244. Arceo claims he was improperly assessed 20 with 120-day credit losses in 1997. Arceo did not pursue judicial relief on those 21 credit losses until 2006, long after the one-year limitations period had lapsed. 22 Thus, the Petition is untimely and is barred by the applicable statute of limitations. 23 4. Respondent denies Arceo has demonstrated his claims warrant federal

24 review or any relief under the Antiterrorism and Effective Death Penalty Act. 25 Arceo has neither alleged nor established that the state court adjudications were 26 contrary to, or unreasonable applications of, clearly established federal law. 27 5. Respondent submits that Arceo's claims raise only questions of law.

28 Neither discovery nor an evidentiary hearing would be appropriate in this matter. 2

Case 3:07-cv-02131-W-BLM

Document 8

Filed 02/19/2008

Page 3 of 9

1

6. Except as expressly admitted herein, Respondent denies each

2 allegation of the Petition. Specifically, Respondent denies that Arceo's 3 constitutional rights have been violated in any way. Respondent further denies that 4 Arceo is entitled to the relief sought or to any other relief. The Answer is based 5 upon the attached Memorandum of Points and Authorities, the lodgments attached 6 to the Notice of Lodgment filed herewith, and the records and files in this case, all 7 of which are incorporated herein by reference. 8 Respondent requests that the Petition be denied and this matter be

9 dismissed. 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 3

Case 3:07-cv-02131-W-BLM

Document 8

Filed 02/19/2008

Page 4 of 9

1 2 3 4 5 6 7

MEMORANDUM OF POINTS AND AUTHORITIES ARGUMENT I. ARCEO IS BARRED FROM FEDERAL REVIEW HERE BECAUSE HE PROCEDURALLY DEFAULTED IN STATE COURT WHICH IS AN INDEPENDENT AND ADEQUATE STATE GROUND FOR DENYING RELIEF. "The independent and adequate state ground doctrine prohibits the federal

8 courts from addressing the habeas corpus claims of state prisoners when a state-law 9 default prevented the state court from reaching the merits of the federal claims." 10 Thomas v. Lewis, 945 F.2d 1119, 1122 (9th Cir. 1991); see also Kibler v. Walters, 11 220 F.3d 1151, 1153 (9th Cir. 2000). Here, Arceo procedurally defaulted in three 12 ways: (1) failing to litigate his claims in a timely manner; (2) failing to exhaust 13 administrative remedies before seeking judicial relief; and (3) failing to present a 14 timely petition for review to the California Supreme Court. 15 California state law bars habeas corpus claims that are raised with

16 unjustified delay. In re Sanders, 21 Cal.4th 697, 703 (Cal. 1999); In re Clark, 5 17 Cal.4th 750, 759 (Cal. 1993). An inmate may justify delay by alleging "with 18 specificity, facts showing when information offered in support of the claim was 19 obtained, and that the information was neither known, nor reasonably should have 20 been known, at any earlier time . . . ." In re Gallego, 18 Cal.4th 825, 833 (Cal. 21 1998). Arceo failed to satisfy this burden in state court. Arceo argued that a 2004 22 California appellate court decision gave rise to his habeas corpus claims and that 23 he sought relief as soon as he became aware of that decision. (Lodg. 2.) The 24 superior court rejected this justification, noting that the cited decision did not 25 establish any new law and that Arceo could have discovered the predicate for his 26 claim well before that decision was rendered. (Lodg. 3.) 27 California law also requires exhaustion of administrative remedies prior to

28 seeking habeas corpus relief. In re Dexter, 25 Cal.3d 921, 925 (Cal. 1979) ("As a 4

Case 3:07-cv-02131-W-BLM

Document 8

Filed 02/19/2008

Page 5 of 9

1 general rule, a litigant will not be afforded judicial relief unless he has exhausted 2 available administrative remedies."). The Kern County Superior Court ruled that 3 Arceo had failed to exhaust administrative remedies and dismissed his claims on 4 this ground. (Lodg. 3.) 5 Finally, a litigant must file a petition in the California Supreme Court for

6 review of an appellate court decision no later than ten days after the appellate court 7 decision is final. (Cal. R. Court 8.500(e).) Here, the clerk of the California 8 Supreme Court returned Arceo's petition for review as unfiled because it was 9 untimely filed. (Lodg. 6.) As such, Arceo's petition for review was not properly 10 presented before the Supreme Court due to his failure to comply with a state 11 procedural rule. 12 Federal review is inappropriate where the state court's decision rests on a

13 state procedural ground that is independent of the federal question raised by the 14 habeas corpus claims. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 15 2546, 2553 (1991). Where, as here, a state court denies relief on procedural 16 grounds without addressing the merits, "the state judgment rests on independent 17 and adequate state procedural grounds." Id. at 729-30, 111 S.Ct. at 2554; see 18 Tacho v. Martinez, 862 F.2d 1376, 1378 (9th Cir. 1988). A federal court does not 19 consider whether the state court properly applied its procedural rules­"[th]is court 20 accepts a state court ruling on questions of state law." High v. Ignacio, 408 F.3d 21 585, 590 (9th Cir. 2005). 22 Here, Arceo had procedurally defaulted and the challenged state court

23 decisions did not address the merits of his claims. As such, this Court is foreclosed 24 from addressing the merits of Arceo's claims. Tacho, 862 F.2d at 1379 ("Based 25 upon precedent, we think it readily apparent that because none of the state courts 26 addressed the merits of petitioner's claim of ineffective assistance of counsel for 27 failure to call alibi witnesses, the federal courts are likewise foreclosed from 28 addressing the merits of petitioner's constitutional claim."). 5

Case 3:07-cv-02131-W-BLM

Document 8

Filed 02/19/2008

Page 6 of 9

1

Arceo's procedural defaults forfeited his right to federal review absent a

2 demonstration of cause and actual prejudice. Thomas, 945 F.2d at 1123. 3 Alternatively, Arceo may show that the procedural rule "is not firmly established 4 and consistently applied." Forrest v. Vasquez, 75 F.3d 562, 564 (9th Cir. 1996). 5 Arceo's misinterpretation of California state law is no basis upon which this Court 6 might excuse his state procedural defaults or otherwise grant federal review. For 7 these reasons, Arceo's claims are barred here. 8 9 10 11 II. THE PETITION IS UNTIMELY AND MUST BE DISMISSED. The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a

12 one-year limitations period within which a state prisoner may seek habeas corpus 13 relief. 28 U.S.C. § 2244(d)(1). This statute of limitations governs all habeas 14 corpus applications filed after April 24, 1996. Shelby v. Bartlett, 391 F.3d 1061, 15 1065 (9th Cir. 2004). AEDPA bars any untimely petition from federal review, 16 even if the delay caused no prejudice. Ferguson v. Palmateer, 321 F.3d 820, 822 17 (9th Cir. 2003). 18 19 20 a. The Statute Of Limitations Began To Run When Arceo Received A Disciplinary Penalty Assessing A Credit Loss.

AEDPA's statute of limitations runs from the latest of four triggering

21 events. See 28 U.S.C. § 2244(d)(1)(A)-(D). The event triggering the limitations 22 period here is: "the date on which the factual predicate of the claim or claims 23 presented could have been discovered through the exercise of due diligence." 24 § 2244(d)(1)(D). 25 Arceo asserts that he was punished with a 120-day credit loss for the 26 manufacture or possession of alcohol in a prison facility, and that the maximum 27 penalty for such a violation is a credit loss of thirty-days. Arceo submitted prison 28 rules violation reports showing these credit losses. (Exs. J2, J4 of Petn.; see Lodg. 6

Case 3:07-cv-02131-W-BLM

Document 8

Filed 02/19/2008

Page 7 of 9

1 7.) The disciplinary penalties were imposed on December 2, 1997 and July 16, 2 1996. (Exs. J3-J4 of Petn., Lodg. 7.) Arceo learned at the respective disciplinary 3 hearing that he was assessed a 120-day credit penalty. Thus, the limitations period 4 began when the Department imposed credit losses on December 2, 1997 and July 5 16, 1996. 6 7 8 b. The Limitations Period Lapsed Before Arceo Sought Habeas Corpus Relief On His Claims.

AEDPA tolls the limitations period only when ". . . a properly filed

9 application for State post-conviction or other collateral review with respect to the 10 pertinent judgment or claim is pending . . . ." 28 U.S.C. § 2244(d)(2). However, if 11 the limitations period lapses before the claim is presented to the state courts, the 12 tolling provision does not restart or revive the limitations period. Laws v. 13 Lamarque, 351 F.3d 919, 922 (9th Cir. 2003); see also Ferguson v. Palmateer, 321 14 F.3d 820, 823 (9th Cir. 2003) ("Like the Eleventh Circuit, we hold that section 15 2244(d) does not permit the reinitiation of the limitations period that has ended 16 before the state petition was filed.") 17 Arceo first filed a state court petition on August 18, 2006, well after the

18 limitations periods had lapsed. (Ex. E of Petn.) By failing to seek judicial relief 19 before expiration of the statute of limitations, Arceo relinquished his right to 20 federal review and the state courts became his sole avenue for relief. See 21 Ferguson, 321 F.3d at 823. Arceo's baseless and erroneous interpretation of 22 California law is no justification for any equitable tolling or for re-starting the 23 limitations period. See Johnson v. United States, 544 U.S. 295, 311, 125 S.Ct. 24 1571, 1582 (2005) ("But we have never accepted pro se representation alone or 25 procedural ignorance as an excuse for prolonged inattention when a statute's clear 26 policy calls for promptness, and on this record we think Johnson fell far short of 27 reasonable diligence in challenging the state conviction."). Therefore, AEDPA 28 bars any relief here. 7

Case 3:07-cv-02131-W-BLM

Document 8

Filed 02/19/2008

Page 8 of 9

1 2 3 4

III. EVEN ASSUMING FEDERAL REVIEW IS APPROPRIATE HERE, THE PETITION FAILS TO STATE ANY GROUND FOR HABEAS CORPUS RELIEF. If this Court deems federal review appropriate here, the Petition must

5 nevertheless be denied because Arceo's claims have no basis. Arceo argues that 6 his 120-day credit penalties for the manufacture or possession of alcohol in a state 7 prison exceeded the maximum of thirty-days permissible under California state 8 law. However, under California law, a prison may impose up to a 120-day credit 9 forfeiture for "[t]he fermentation or distillation of materials in a manner consistent 10 with the production of alcohol or the physical possession of alcohol in an 11 institution/facility or contract health facility." Cal. Code Regs. tit. 15, 12 § 3323(e)(11). 13 In the Petition, Arceo argues that a thirty-day credit forfeiture is the

14 maximum penalty for a disciplinary violation that could not be prosecuted as a 15 misdemeanor or felony. Arceo asserts that his 120-day credit forfeitures exceeded 16 the maximum thirty-day penalty because his disciplinary violations could not be 17 prosecuted as a misdemeanor or felony. See Cal. Penal Code § 2932(a)(4); see also 18 In re Dikes, 121 Cal.App.4th 825, 833-34 (Cal. Ct. App. 2004). There is no basis 19 for this claim. 20 The California Penal Code prohibits, as a felony, the unauthorized

21 possession of any alcoholic beverage in a state prison. Cal. Penal Code § 4573.5. 22 Any disciplinary violation that could be prosecuted as a felony maybe punished 23 with a credit forfeiture of up to 180 days. Cal. Penal Code § 2932(a)(2). Here, 24 either of Arceo's disciplinary violations could have been prosecuted as a felony. 25 As such, the 120-day credit forfeitures were permissible under state law. See id; 26 see also Cal. Code Regs. tit. 15, § 3323(e). 27 /// 28 /// 8

Case 3:07-cv-02131-W-BLM

Document 8

Filed 02/19/2008

Page 9 of 9

1 2

CONCLUSION The Petition must be denied because Arceo presents no claims appropriate

3 for federal review. Arceo had procedurally defaulted on his claims in state court, 4 and the state courts denied relief on state law grounds that were independent of the 5 federal issue and adequate to support the judgment. Additionally, the Petition was 6 untimely filed after AEDPA's one-year limitations period had expired. As such, 7 Arceo's claims are barred from federal review and the Petition must be denied. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
60277631.wpd

Dated: February 19, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General HEATHER BUSHMAN Supervising Deputy Attorney General

/s/ Charles Chung
CHARLES CHUNG Deputy Attorney General Attorneys for Respondent

SD2008600009