1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROY RUSS, Case No. 18-cv-1154-AWI-JDP (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS PETITION 14 BRANDON PRICE, OBJECTIONS DUE IN THIRTY DAYS 15 Respondent. ECF No. 24 16 17 Petitioner Roy Russ, a civil detainee confined at Coalinga State Hospital, seeks a writ of 18 habeas corpus under 28 U.S.C. § 2254.1 ECF No. 1. Petitioner challenges a 2016 state superior 19 court denial of habeas relief. ECF No. 1 at 42. On March 16, 2020, respondent filed the instant 20 motion to dismiss the petition as untimely. ECF No. 24. On April 1, 2020, petitioner filed an 21 opposition, ECF No. 27, and on April 2, 2020, respondent replied, ECF No. 28. This matter is 22 now ripe for review. For the reasons stated below, respondent’s motion to dismiss should be 23 granted. 24 25 26 1 Although petitioner filed the instant petition using a 28 U.S.C. § 2241 petition form, we 27 construe his filing as a 28 U.S.C. § 2254 petition. ECF No. 1. Section 2254 is the proper vehicle for a civil detainee in state custody seeking relief relating to the duration of his confinement. See 28 Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1139-40 (9th Cir. 2005). 1 Background 2 On April 8, 1988, petitioner pleaded guilty to committing a lewd and lascivious act on a 3 child under the age of 14. See People v. Russ, No. F056349, 2009 WL 2232667, at *2 (Cal. App. 4 July 27, 2009). On August 26, 2008, petitioner was indefinitely committed to the California State 5 Hospital (“hospital”) after being designated a sexually violent predator (“SVP”). ECF No. 1 at 6 104. In 2015, the Fresno County Superior Court ordered the hospital to file a habeas petition on 7 behalf of petitioner to seek judicial review of petitioner’s SVP status, and the hospital did so. 8 ECF No. 1 at 112-28. On July 6, 2016, the superior court determined that petitioner’s SVP 9 designation remained appropriate and accordingly denied petitioner habeas relief. Id. at 208-12. 10 On August 27, 2018, petitioner filed the instant federal petition, seeking relief from the superior 11 court’s 2016 denial. 12 Discussion 13 No habeas rule explicitly applies to motions to dismiss. See Hillery v. Pulley, 533 F. 14 Supp. 1189, 1194 (E.D. Cal. 1982) (“Motion practice in habeas corpus is not specifically 15 provided for in the rules but must be inferred from their structure and the Advisory Committee 16 Notes.”). Following the approach most frequently taken by other courts in this district, we find 17 that Rule 4 of the Rules Governing Section 2254 Cases provides the most appropriate analytical 18 framework for this motion to dismiss, which asserts untimeliness as a basis for dismissal. See, 19 e.g., Ram v. Sacramento Cty., No. 2:15-cv-2074-WBS-DB, 2017 U.S. Dist. Lexis 85123 at *4 20 (E.D. Cal. June 2, 2017). Rule 4 establishes what is commonly known as a “screening” procedure 21 for habeas petitions. See O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); Browder v. 22 Dir., Dep’t of Corr. of Illinois, 434 U.S. 257, 269 n.14 (1978); Fed. R. Civ. P. 81(a)(4)(A). It 23 limits our consideration to “the petition and any attached exhibits”—somewhat like the limitation 24 to the pleadings that would apply to a motion to dismiss for untimeliness outside the habeas 25 context under Federal Rule of Civil Procedure 12(b)(6) or 12(c).2 Under Rule 4, we evaluate 26 2 “When a motion to dismiss is based on the running of the statute of limitations, it can be granted 27 only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.” Jablon v. Dean Witter & Co., 614 F.2d 677, 682 28 (9th Cir. 1980). “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are 1 whether it “plainly appears” that the petitioner is not entitled to relief—and if so we dismiss the 2 petition. 3 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), petitioners seeking 4 habeas relief under § 2254 must comply with a one-year statute of limitations.3 For most habeas 5 petitioners, the one-year clock starts to run on “the date on which the judgment became final by 6 the conclusion of direct review or the expiration of the time for seeking such review.” 42 U.S.C. 7 § 2244(d)(1)(A).4 Statutory tolling applies to the “time during which a properly filed application 8 for State post-conviction or other collateral review with respect to the pertinent judgment or claim 9 is pending.” Id. § 2244(d)(2). 10 Here, petitioner raises two due process claims arising from the superior court’s July 6, 11 2016 denial of habeas relief: (1) the hospital failed to adhere to certain state procedural rules; and 12 (2) the court erroneously admitted evidence beyond the scope of the case and allowed the 13 government to take “multiple positions.” ECF No. 1 at 50. At the time of the superior court’s 14 July 6, 2016 denial of habeas relief, petitioner had a separate habeas petition pending before the 15 California Supreme Court. ECF No. 24 at 5. On July 6, 2016, the California Supreme Court 16 directed petitioner to file a supplement to that petition, apparently in light of the superior court’s 17 denial of habeas relief on the same day. Id. Petitioner filed his supplement on July 15, 2016 and
18 presented to and not excluded by the court, the motion must be treated as one for summary 19 judgment under Rule 56.” Fed. R. Civ. P. 12(d); see Farr v. United States, 990 F.2d 451, 454 (9th Cir. 1993); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 20 1989). 3 Petitioner argues that because he filed his petition under § 2241, the petition is not subject to 21 AEDPA’s statute of limitations. ECF No. 27 at 1. However, a § 2254 petition is his exclusive means for seeking habeas relief, and therefore his petition is subject to AEDPA’s statute of 22 limitations. 23 4 Although petitioner challenges the superior court’s denial of his habeas petition, not his underlying 1988 conviction, we will consider the date of the superior court’s affirmation of 24 petitioner’s SVP designation and related denial of habeas relief as the relevant date of “judgment” under § 2244(d)(1)(A). See Ronje v. King, No. SACV 17-00755 SJO (RAO), 2017 U.S. Dist. 25 LEXIS 116482, at *5 (C.D. Cal. July 16, 2017) (using the date “when the judgment subjecting petitioner to SVP confinement became final to determine the trigger date for the statutory period” 26 under § 2244(d)(1)(A)); Martin v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROY RUSS, Case No. 18-cv-1154-AWI-JDP (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS PETITION 14 BRANDON PRICE, OBJECTIONS DUE IN THIRTY DAYS 15 Respondent. ECF No. 24 16 17 Petitioner Roy Russ, a civil detainee confined at Coalinga State Hospital, seeks a writ of 18 habeas corpus under 28 U.S.C. § 2254.1 ECF No. 1. Petitioner challenges a 2016 state superior 19 court denial of habeas relief. ECF No. 1 at 42. On March 16, 2020, respondent filed the instant 20 motion to dismiss the petition as untimely. ECF No. 24. On April 1, 2020, petitioner filed an 21 opposition, ECF No. 27, and on April 2, 2020, respondent replied, ECF No. 28. This matter is 22 now ripe for review. For the reasons stated below, respondent’s motion to dismiss should be 23 granted. 24 25 26 1 Although petitioner filed the instant petition using a 28 U.S.C. § 2241 petition form, we 27 construe his filing as a 28 U.S.C. § 2254 petition. ECF No. 1. Section 2254 is the proper vehicle for a civil detainee in state custody seeking relief relating to the duration of his confinement. See 28 Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1139-40 (9th Cir. 2005). 1 Background 2 On April 8, 1988, petitioner pleaded guilty to committing a lewd and lascivious act on a 3 child under the age of 14. See People v. Russ, No. F056349, 2009 WL 2232667, at *2 (Cal. App. 4 July 27, 2009). On August 26, 2008, petitioner was indefinitely committed to the California State 5 Hospital (“hospital”) after being designated a sexually violent predator (“SVP”). ECF No. 1 at 6 104. In 2015, the Fresno County Superior Court ordered the hospital to file a habeas petition on 7 behalf of petitioner to seek judicial review of petitioner’s SVP status, and the hospital did so. 8 ECF No. 1 at 112-28. On July 6, 2016, the superior court determined that petitioner’s SVP 9 designation remained appropriate and accordingly denied petitioner habeas relief. Id. at 208-12. 10 On August 27, 2018, petitioner filed the instant federal petition, seeking relief from the superior 11 court’s 2016 denial. 12 Discussion 13 No habeas rule explicitly applies to motions to dismiss. See Hillery v. Pulley, 533 F. 14 Supp. 1189, 1194 (E.D. Cal. 1982) (“Motion practice in habeas corpus is not specifically 15 provided for in the rules but must be inferred from their structure and the Advisory Committee 16 Notes.”). Following the approach most frequently taken by other courts in this district, we find 17 that Rule 4 of the Rules Governing Section 2254 Cases provides the most appropriate analytical 18 framework for this motion to dismiss, which asserts untimeliness as a basis for dismissal. See, 19 e.g., Ram v. Sacramento Cty., No. 2:15-cv-2074-WBS-DB, 2017 U.S. Dist. Lexis 85123 at *4 20 (E.D. Cal. June 2, 2017). Rule 4 establishes what is commonly known as a “screening” procedure 21 for habeas petitions. See O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); Browder v. 22 Dir., Dep’t of Corr. of Illinois, 434 U.S. 257, 269 n.14 (1978); Fed. R. Civ. P. 81(a)(4)(A). It 23 limits our consideration to “the petition and any attached exhibits”—somewhat like the limitation 24 to the pleadings that would apply to a motion to dismiss for untimeliness outside the habeas 25 context under Federal Rule of Civil Procedure 12(b)(6) or 12(c).2 Under Rule 4, we evaluate 26 2 “When a motion to dismiss is based on the running of the statute of limitations, it can be granted 27 only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.” Jablon v. Dean Witter & Co., 614 F.2d 677, 682 28 (9th Cir. 1980). “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are 1 whether it “plainly appears” that the petitioner is not entitled to relief—and if so we dismiss the 2 petition. 3 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), petitioners seeking 4 habeas relief under § 2254 must comply with a one-year statute of limitations.3 For most habeas 5 petitioners, the one-year clock starts to run on “the date on which the judgment became final by 6 the conclusion of direct review or the expiration of the time for seeking such review.” 42 U.S.C. 7 § 2244(d)(1)(A).4 Statutory tolling applies to the “time during which a properly filed application 8 for State post-conviction or other collateral review with respect to the pertinent judgment or claim 9 is pending.” Id. § 2244(d)(2). 10 Here, petitioner raises two due process claims arising from the superior court’s July 6, 11 2016 denial of habeas relief: (1) the hospital failed to adhere to certain state procedural rules; and 12 (2) the court erroneously admitted evidence beyond the scope of the case and allowed the 13 government to take “multiple positions.” ECF No. 1 at 50. At the time of the superior court’s 14 July 6, 2016 denial of habeas relief, petitioner had a separate habeas petition pending before the 15 California Supreme Court. ECF No. 24 at 5. On July 6, 2016, the California Supreme Court 16 directed petitioner to file a supplement to that petition, apparently in light of the superior court’s 17 denial of habeas relief on the same day. Id. Petitioner filed his supplement on July 15, 2016 and
18 presented to and not excluded by the court, the motion must be treated as one for summary 19 judgment under Rule 56.” Fed. R. Civ. P. 12(d); see Farr v. United States, 990 F.2d 451, 454 (9th Cir. 1993); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 20 1989). 3 Petitioner argues that because he filed his petition under § 2241, the petition is not subject to 21 AEDPA’s statute of limitations. ECF No. 27 at 1. However, a § 2254 petition is his exclusive means for seeking habeas relief, and therefore his petition is subject to AEDPA’s statute of 22 limitations. 23 4 Although petitioner challenges the superior court’s denial of his habeas petition, not his underlying 1988 conviction, we will consider the date of the superior court’s affirmation of 24 petitioner’s SVP designation and related denial of habeas relief as the relevant date of “judgment” under § 2244(d)(1)(A). See Ronje v. King, No. SACV 17-00755 SJO (RAO), 2017 U.S. Dist. 25 LEXIS 116482, at *5 (C.D. Cal. July 16, 2017) (using the date “when the judgment subjecting petitioner to SVP confinement became final to determine the trigger date for the statutory period” 26 under § 2244(d)(1)(A)); Martin v. Bartow, 628 F.3d 871, 874 (7th Cir. 2010) (recognizing that 27 each state court order continuing civil commitment or denying a challenge to such commitment constitutes a new “judgment” under § 2244(d)(1)(A), and therefore starts a new statute of 28 limitations period). 1 the Court denied relief on October 12, 2016.5 Id. Therefore, the Court’s October 12, 2016 denial 2 triggered AEDPA’s statute of limitations.6 AEDPA’s one-year statute of limitations began to run 3 the next day, on October 13, 2016, and expired on October 12, 2017. During that period, 4 petitioner did not file any subsequent applications for state collateral review.7 Petitioner filed the 5 instant federal petition on August 27, 2018. Therefore, because petitioner failed to seek federal 6 review within the statute of limitations, it plainly appears that he is not entitled to relief. We 7 recommend that respondent’s motion to dismiss be granted. 8 Certificate of Appealability 9 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 10 court’s dismissal of a petition; he may appeal only in limited circumstances. See 28 U.S.C. 11 § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 12 Cases requires a district court to issue or deny a certificate of appealability when entering a final 13 order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 14 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court denies habeas relief on procedural 15 grounds without reaching the underlying constitutional claims, the court should issue a certificate 16 of appealability “if jurists of reason would find it debatable whether the petition states a valid 17 claim of the denial of a constitutional right and that jurists of reason would find it debatable 18 whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 19
20 5 Respondent asserts that the California Supreme Court’s review of this habeas petition included a collateral review of the superior court’s July 6, 2016 decision. ECF No. 24 at 2. Without the 21 benefit of reasoning from the California Supreme Court, we cannot make that determination. However, whether the California Supreme Court collaterally reviewed the superior court’s 22 decision is immaterial because petitioner sought no other timely review of the superior court’s 23 decision. 6 A California Supreme court order denying a habeas petition becomes final immediately in cases 24 where, as here, no order to show cause was issued. See Cal. R. of Ct. 8.532. 7 On March 20, 2018, nearly six months after the statute of limitations expired, petitioner sought 25 habeas relief from the California Court of Appeal. ECF No. 1 at 61. The Court of Appeal denied relief on March 29, 2018 and the California Supreme Court denied the petition as successive on 26 August 15, 2018. Id. at 42-42. Because this petition was filed after the statute of limitations had 27 expired, it had no effect on the timeliness of the federal petition. See Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (explaining that a state habeas petition filed after the limitations period 28 has run results in no tolling). wOAOe UVM ELEMTAN I VERA oe POC ee OY VI
1 | 484 (2000). “Where a plain procedural bar is present and the district court is correct to invoke it 2 | to dispose of the case, a reasonable jurist could not conclude either that the district court erred in 3 | dismissing the petition or that the petitioner should be allowed to proceed further.” Jd. 4 Here, reasonable jurists would not find our conclusion debatable or conclude that 5 || petitioner should proceed further. Thus, we recommend that the court decline to issue a 6 | certificate of appealability. 7 | Findings and Recommendations 8 For the foregoing reasons, we recommend that the court grant respondent’s motion to 9 | dismiss, ECF No. 24, dismiss the case, and decline to issue a certificate of appealability. These 10 | findings and recommendations are submitted to the U.S. district judge presiding over the case 11 under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within thirty days of the service of the 12 | findings and recommendations, the parties may file written objections to the findings and 13 | recommendations with the court and serve a copy on all parties. That document must be 14 || captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding 15 | district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 16 7 IT IS SO ORDERED. 18 ( Caan Dated: _ May 15, 2020 19 UNI STATES MAGISTRATE JUDGE 20 21 | No. 206. 22 23 24 25 26 27 28