Opinion
No. C 04-01073 CRB.
September 28, 2004
MEMORANDUM AND ORDER
Petitioner, a state prisoner incarcerated at Folsom State Correctional Facility in Folsom, California, seeks a writ of habeas corpus under 28 U.S.C. Section 2254. On June 1, 2004 Respondent filed a motion to dismiss the petition as untimely pursuant to Rules Governing Section 2254 Cases, Rule 4. Petitioner filed a response, to which Respondent has filed a reply.
BACKGROUND
On March 18, 1985 Petitioner Ramin Sariaslan was sentenced in the Marin County Superior Court of California to fifteen (15) years to life in state prison for second-degree murder in violation of California Penal Code section 187. Petitioner was upset with his mother, so he bound and gagged her, stealing her car and credit cards, and left her on the floor in her bathroom where she died from asphyxiation or strangulation.
Petitioner appeared before the California Board of Prison Terms ("BPT") for parole hearings in 1993 and 1995 and was denied both times. Petitioner appeared again before the BPT on December 14, 1999 for a subsequent parole hearing and was again denied parole for a period of four years. Petitioner Sariaslan filed an administrative appeal of the December 14, 1999 decision which was denied by the BPT on September 12, 2000.
Petitioner filed a petition for writ of habeas corpus in California Superior Court on June 1, 2001 which was denied on December 19, 2001. He filed a petition with the Court of Appeal which was denied on March 19, 2002. Petitioner then filed his petition with the Supreme Court of California which was denied on March 29, 2003.
On March 17, 2004 Petitioner Sariaslan filed a Petition for Writ of Habeas Corpus in this Court under 28 U.S.C. section 2254. On March 26, 2004 this Court issued an Order to Show Cause directing the Respondent to submit an answer within sixty (60) days of the issuance of the order. On June 1, 2004, Respondent filed a Motion to Dismiss the petition on the grounds that it was brought beyond the statute of limitations.
In his Reply Memorandum to Respondent's Motion to Dismiss, Petitioner asks this Court to deny the motion on the basis that it was brought beyond the sixty (60) day deadline imposed by this Court in the Order to Show Cause issued on March 26, 2004. However, pursuant to Rule 6(a) of the Federal Rules of Civil Procedure regarding computation of time, Respondent's Motion to Dismiss Petition, filed on June 1, 2004, was timely filed and therefore can be considered.
DISCUSSION
I. Motion to Dismiss Petition as UntimelyThe Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became law on April 24, 1996 and imposed for the first time 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 of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1). Time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year time limit. See id. § 2244(d)(2).
Petitioner and Respondent agree that for the purposes of the statute of limitations, Petitioner was made aware of his claims on September 12, 2000, when his administrative appeal to the BPT was denied. The statute would therefore begin to run the next day, or September 13, 2000. Pursuant to Section 2244(d)(2), the statute of limitations was tolled between June 1, 2001 and March 26, 2003, when his petition was denied by the California Supreme Court. Calculating AEDPA's one-year limitation period according to the Federal Rules of Civil Procedure 6(a), Petitioner had until July 9, 2003 to file his petition in this Court. However, the instant petition was not filed until March 17, 2004. It is therefore untimely.
Petitioner asks that Respondent's motion to dismiss the petition as untimely be denied based on the principles of "justice and fairness." On June 10, 2003, counsel for Petitioner forwarded to the Northern District of California Clerk's Office a petition for filing. On June 18, 2003, the clerk informed counsel that the petition was not filed because it lacked a civil case cover sheet and the $5.00 filing fee. The statute of limitations ran on July 9, 2003. On September 24, 2003, Petitioner (or his counsel) again forwarded his petition to the court. The clerk informed counsel on September 29, 2003 that the filing was rejected because of an incomplete money order form. Petitioner finally filed the instant petition on March 17, 2004.
The one-year limitation period may be equitably tolled if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (citation and internal quotation marks omitted), overruled in part on other grounds by Calderon v. United States District Court (Kelley), 163 F. 3d 530 (9th Cir. 1998) (en banc). "The prisoner must show that the 'extraordinary circumstances' were the cause of his untimeliness." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (citations omitted). Equitable tolling is justified in few cases. "Indeed, the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citation and internal quotation marks omitted) (finding equitable tolling not warranted where appointed appellate counsel for state appeal miscalculated date federal habeas petition due). Petitioner "bears the burden of showing that this extraordinary exclusion should apply to him." Id.
See, e.g., Stillman v. LaMarque, 319 F.3d 1199, 1202 (9th Cir. 2003) (finding equitable tolling warranted where prison litigation coordinator promised prisoner's lawyer to obtain prisoner's signature in time for filing petition, but then broke his promise, causing petition to be late); Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002) (finding equitable tolling warranted where district court erroneously refused to accept petition for filing because of technical deficiency in cover sheet and lost body of petition by the time petitioner sent in corrected cover sheet); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (finding equitable tolling warranted where prison authorities failed to follow prisoner's request to draw filing fee for habeas petition from his trust account and mail it with petition to district court for filing).
In noncapital cases, an attorney's miscalculation of the limitations period and negligence generally do not constitute extraordinary circumstances sufficient to warrant equitable tolling. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (distinguishing capital cases such as Beeler in which the petitioner has the right to a habeas petition filed by counsel). Where the attorney's conduct is sufficiently egregious, as opposed to merely negligent, equitable tolling may be appropriate. See Spitsyn, 345 F.3d at 800-01 (equitable tolling appropriate where attorney was retained to file and prepare petition, failed to do so, and disregarded requests to return files pertaining to petitioner's case until well after the date the petition was due; remanding on issue of whether petitioner exercised reasonable diligence). Petitioner's opposition does not include enough facts for the Court to determine if this is such a case. From the papers submitted the Court can surmise that Petitioner is represented by an attorney, and that this attorney failed to timely file Petitioner's writ for habeas corpus. Whether facts exist similar to the facts inSpitsyn is unknown, in part because the Petitioner continues to be represented by the same attorney who failed to timely file his petition.
The Court does not need to invite further proceedings to determine if facts beyond Petitioner's control prevented the timely filing of his petition. For the reasons discussed below, the petition fails on the merits in any event, based on well-settled Ninth Circuit law.
II. Petition for Writ of Habeas Corpus
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C § 2254(a).
The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d).
B. Legal Claims
Petitioner seeks federal habeas corpus relief from the BPT's December 14, 1999 decision finding him not suitable for parole on four grounds: 1) that there is no evidence supporting the BPT's denial of parole in violation of Petitioner's due process rights; 2) that Petitioner meets none of the parole unsuitability criteria in violation of his due process rights; 3) that denial of parole based on the "cruel, heinous, and atrocious" language of § 2402(c)(1) is impermissible because it is unconstitutionally vague; and 4) that denial of parole based on the "cruel, heinous, and atrocious" language of § 2402(c)(1) is impermissible as a usurpation of the legislative function.
i. Absence of Evidence
California's parole scheme provides that the BPT "shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting." Cal. Penal Code § 3041(b). In making this determination, the BPT must consider various factors, including the prisoner's social history, past criminal history, and base and other commitment offenses, including behavior before, during and after the crime.See 15 C.C.R. § 2402(b) — (d). This parole scheme "gives rise to a cognizable liberty interest in release on parole" which cannot be denied without adequate procedural due process protections. McQuillion v. Duncan, 306 F3d 895, 902 (9th Cir. 2002). It matters not that, as is the case here, a parole release date has never been set for the inmate because "[t]he liberty interest is created, not upon the grant of a parole date, but upon the incarceration of the inmate." Biggs v. Terhune, 334 F.3d 910, 914-15 (9th Cir. 2003) (finding initial refusal to set parole date for prisoner with 15-to-life sentence implicated prisoner's liberty interest).
It is well established that a parole board's decision to deny parole satisfies the requirements of due process if "some evidence" supports the decision. See Biggs, 334 F.3d at 915 (adopting the "some evidence" standard for disciplinary hearings outlined in Superintendent v. Hill, 472 U.S. 445 (1985));McQuillion, 306 F.2d at 904 (same); Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987) (same). The "some evidence" standard is minimally stringent: The "Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact." Hill, 472 U.S. at 456 (emphasis added). The relevant question is "whether there is any evidence in the record that could support the conclusion reached by the [BPT]." Id. at 455-56. The court "cannot reweigh the evidence;" it only looks "to see if 'some evidence' supports the BPT's decision." Powell v. Gomez, 33 F.3d 39, 42 (9th Cir. 1994). Additionally, the evidence underlying the BPT's decision must have some indicia of reliability. See Biggs, 334 F.3d at 915; McQuillion, 306 F.3d at 904; Jancsek, 833 F.3d at 1390. Relevant to this inquiry is whether the prisoner was afforded an opportunity to appear before, and present evidence to, the board.See Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir. 1987); see also Morales v. California Dep't of Corrections, 16 F.3d 1001, 1005 (9th Cir. 1994) (court may consider whether a prisoner's allegations of any violations by the board are of a "minor" nature, whether they are supported in fact, whether the prisoner had an opportunity to participate, and whether he took full advantage of that opportunity), rev'd on other grounds, 514 U.S. 499 (1995).
Petitioner claims there is no evidence to support any of the six reasons given by the BPT in denying him parole. The record shows that on December 14, 1999, petitioner appeared with counsel before a BPT hearing panel for a parole consideration hearing. The presiding commissioner explained that in assessing suitability for parole the panel would consider petitioner's commitment offense, prior criminality and his adjustment since being incarcerated. Accord 15 C.C.R. § 2402(b) (setting out factors to be considered in determining suitability for parole). The commissioner also explained that the panel had reviewed petitioner's central file and other documents pertaining to the proceedings and that it would afford petitioner or his attorney an opportunity to make corrections to the record.
The panel then discussed with petitioner the evidence relevant to each of the factors to be considered in determining his suitability for parole, and provided him with ample opportunity to be heard on every issue. The panel also heard statements from a deputy district attorney and petitioner's attorney, and again from petitioner.
The panel recessed to deliberate and, after the hearing resumed, found that petitioner was "not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." Dec 5, 1999 Hr'g Tr at 45 (Pet'rs Ex 1). The panel explained that it was denying petitioner parole for a period of four years based primarily on the following findings: (1) the commitment offense was carried out in an "especially callous manner" with a "motive that was inexplicable" and with a "callous disregard for human suffering" — petitioner was upset with his mother so he bound and gagged her, causing her to die from either asphyxiation or strangulation; (2) petitioner had two prior convictions for forgery; (3) petitioner had experimented with marijuana before his conviction; (4) petitioner has not sufficiently participated in self-help and therapy; (5) petitioner received a CDC Form 115 for not complying with instructions on August 17, 1995; and (6) the District Attorney's office voiced opposition to the granting of a parole date. Id. at 35-38.
The panel commended petitioner for "having been involved in welding and dry cleaning, and upgrading educationally, and getting above-average work reports." Id. at 46. However, it made clear that, in its judgment, "these positive aspects of [petitioner's] behavior do not outweigh the factors of unsuitability." Id.
Petitioner is not entitled to federal habeas relief because the BPT's December 14, 1999 decision to deny him parole is supported by some evidence in the record and that evidence bears some indicia of reliability. See, e.g., Biggs, 334 F.3d at 916 (upholding denial of parole based solely on gravity of offense and conduct prior to imprisonment); Morales, 16 F.3d at 1005 (upholding denial of parole based on criminal history, cruel nature of offense, and need for further psychiatric treatment). Petitioner may be correct that some of the reasons given for denying him parole are unsupported by evidence, however, the record demonstrates that the BPT gave petitioner individualized consideration and that there is "some evidence" in the record to support the decision to deny petitioner parole after the December 14, 1999 hearing. Petitioner's disagreement with the BPT's assessment of the evidence does not compel a different result. The inquiry here is simply "whether there is any evidence in the record that could support the conclusion reached by the [BPT]."Hill, 474 U.S at 455-56. There is, as the Commissioner himself states, "the prisoner apparently was upset with his mother and he ultimately ended up tying her up and, as a result of him having bound and gagged her, she asphyxiated, or she died as a result of strangulation." Dec. 5, 1999 Hr'g Tr at 45 (Pet'rs Ex 1). Based on the Statement of Facts the BPT concluded that the crime was committed "in an exceptionally callous manner with a callous disregard for human suffering." Id. It is not up to this Court to "reweigh the evidence." Powell v. Gomez, 33 F.3d 39, 42 (9th Cir. 1994).
ii. Parole Unsuitability Criteria
Next, Petitioner claims that he must be granted parole because he meets none of the parole unsuitability criteria and does meet all of the parole suitability criteria. The parole suitability criteria is set forth in 15 C.C.R. Section 2402(c)(1) (A-E). As stated above, the BPT found Petitioner unsuitable for parole based on evidence in the record that the offense was carried out "in a manner which demonstrates an exceptionally callous disregard for human suffering." § 2402(c)(1)(D). Therefore, based on the "some evidence" test established inBiggs, Petitioner is not suitable for parole and this claim fails.
iii. Vagueness Challenge
Petitioner cites Maynard v. Cartwright, 486 U.S. 356, for the proposition that the language found in § 2402(c)(1) (A-E) (cruel, heinous atrocious, exceptionally callous with callous disregard for human suffering) is unconstitutional, as the terms used are too vague to have any discernable meaning. However, the vagueness challenge in Maynard related to aggravating factors considered by a jury in death penalty cases, and thus was raised under the Eight Amendment. Maynard, 486 U.S. at 361. On the other hand, "an objection to vagueness in the wording of a state statute or regulation . . . implicates the Due Process Clause of the Fourteenth Amendment." Butler v. Calderon, No. C-97-2184, 1998 WL 387612, at *5 (N.D. Cal. Jul. 6, 1998). In Butler, the court found that "a prisoner's vagueness challenge to standards relied upon by the Board at a parole hearing will fail where the prisoner has received the process due . . ." Id. This Court has already found that Petitioner received all the due process to which he is entitled, and therefore his vagueness challenge must fail. See Pedro, 825 F.2d at 1399 (claim that due process required articulation of a standard definition of the term "significant planning and preparation" failed because petitioner received all the process due).
iv. Separation of Powers
Lastly, Petitioner challenges his denial of parole on the basis that the BPT's reliance on the language of § 2402(c)(1) is impermissible as a usurpation of the legislative function, violating the state and federal doctrine of separation of powers. This claim is not cognizable because the federal doctrine of separation of powers does not extend to the states under the Fourteenth Amendment. See Hughes v. Superior Court, 339 U.S. 460, 467 (1950). The question of whether a state agency violates the doctrine of separation of powers contained in the California state constitution does not give rise to a claim for federal habeas relief. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). Accordingly, Petitioner's challenge to his denial of parole based on the separation of powers doctrine fails.
CONCLUSION
Petitioner's writ for habeas corpus was filed untimely and equitable tolling does not, on the limited record before the Court, appear to apply. However, even if equitable tolling were to apply in this case, Petitioner's writ of habeas corpus regarding his December 14, 1999 denial of parole would still fail on the merits. It cannot be said that the Supreme Court of California's rejection of petitioner's challenge to the BPT's December 14, 1999 decision was "contrary to, or involved an unreasonable application of, clearly established Federal law," or that it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C § 2254(d)
For the foregoing reasons, the petition fails as a matter of law.
IT IS SO ORDERED.