United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JAMES F. LUDDON, 

Petitioner,

 vs.

B. CURRY, Warden,

Respondent. ______________________________

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No. C 08-0275 MMC (PR)

ORDER GRANTING MOTION TO

DISMISS PETITION AS UNTIMELY

(Docket No. 9)

On January 16, 2008, petitioner, a California prisoner incarcerated at the Correctional

Training Facility at Soledad and proceeding pro se, filed the above-titled petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254, challenging the denial of parole by the

California Board of Parole Hearings (“Board”). After reviewing the petition, the Court

ordered respondent to file an answer showing cause why the petition should not be granted,

or in the alternative, a motion to dismiss on procedural grounds. Respondent chose the latter

course and has filed a motion to dismiss the petition, on the ground that the petition is barred

by the applicable one-year statute of limitations. See 28 U.S.C. § 2244(d). Petitioner has not

filed an opposition, although he was informed in two court orders of his right to do so.

BACKGROUND

In 1986, in the Superior Court of Contra Costa County (“Superior Court”), petitioner

was convicted of first degree murder and conspiracy to commit murder. He was sentenced to

a term of twenty-six years to life in state prison. On April 19, 2004, the Board found

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For purposes of the instant motion, respondent has assumed that the proofs of service

attached to petitioner’s state and federal filings evidence the effective date of filing under the

mailbox rule. (See Mot. Dismiss at 3:8-14 & n.1 (citing Saffold v. Newland, 250 F.3d 1262,

1268 (9th Cir. 2001) (holding, under AEDPA, prisoner’s habeas petition deemed filed on

date of delivery to prison officials for mailing, including habeas petitions filed in state court),

vacated and remanded on other grounds, Carey v. Saffold, 536 U.S. 214 (2002).)

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petitioner unsuitable for parole. (Mot. Dismiss Ex. 1.) 

On March 12, 2005, petitioner mailed to the Superior Court a habeas petition

challenging the Board’s decision. (Id.) On April 26, 2005, the Superior Court’s order

denying the petition was filed. (Mot. Dismiss Ex. 2.)

On December 22, 2005, petitioner mailed to the California Court of Appeal a habeas

petition challenging the Board’s decision. (Mot. Dismiss Ex. 3.) On January 5, 2006, the

Court of Appeal’s order denying the petition was filed. (Mot. Dismiss Ex. 4.) 

On May 6, 2007, petitioner mailed to the California Supreme Court a habeas petition

challenging the Board’s decision. (Mot. Dismiss Ex. 5.) On September 19, 2007, the

California Supreme Court’s order denying the petition was filed. (Mot. Dismiss Ex. 6.)

On January 6, 2008, petitioner delivered the instant petition to prison officials for

mailing. (See Pet. & attached proof of service). The petition was filed in this court on

January 16, 2008. (Id.)

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Petitioner claims the denial of parole violated his federal constitutional right to due

process because the Board’s decision that petitioner’s release would pose an unreasonable

risk to public safety was not supported by some evidence and was the result of the Board’s

biased “no parole” policy. 

DISCUSSION

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996 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 noncapital state convictions or sentences must be filed within one year of the latest of: 

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The one-year period is calculated in accordance with Rule 6 of the Federal Rules of

Civil Procedure, the general rule for computing time in federal courts. See Patterson v.

Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Under Rule 6, the day of the event that

triggers the time period is excluded from the computation, while the last day of the time

period is included. Fed. R. Civ. P. 6(a)(1). 

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(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. 

28 U.S.C. § 2244(d)(1). 

The 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). Such administrative decisions include decisions denying parole. 

See Redd v. McGrath, 343 F.3d 1077, 1080 n.4 (9th Cir. 2003) (assuming, without deciding,

one-year statute of limitations applies to decision denying parole). Further, of the four

possible starting dates for the one-year limitations period set forth at 28 U.S.C. § 2244(d)(1),

the date set forth under sub-paragraph D is the date applicable to a petition challenging a

decision denying parole. See id. at 1082. 

Under 28 U.S.C. § 2244(d)(1)(D), the one-year limitations period begins to run one

day after the date the petitioner could have discovered the “factual predicate” of his federal

habeas corpus claim. See id.

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 “[T]he date of the ‘factual predicate’ . . . . is determined

independently of the exhaustion requirement by inquiring when [the petitioner] could have

learned of the factual basis for his claim through the exercise of due diligence.” Id. The

petitioner learns of the factual basis of that claim at the time the decision becomes final. See

id. at 1079 (holding limitations period began to run when Board of Prison Terms denied

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The Court does not consider herein the issue of equitable tolling. Petitioner does not

argue in his petition that he is entitled to equitable tolling, and no grounds for such tolling are

apparent from the record that has been developed in this matter. 

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prisoner’s administrative appeal challenging decision denying parole). Here, the

administrative decision at issue, the Board’s April 19, 2004 denial of parole suitability,

became final when issued, because there are no provisions for further administrative review. 

See id. at 1079, 1084. Consequently, the one-year limitations period began to run the next

day, on April 20, 2004, and the presumptive filing date for petitioner’s federal habeas

petition was one year later, April 20, 2005. As the instant petition was not delivered to

prison officials for mailing until January 6, 2008, the petition, absent statutory or equitable

tolling,3

 is untimely. 

B. Statutory Tolling

The one-year statute of limitations 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 pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2); see Redd,

343 F.3d at 1084 (holding prisoner challenging administrative decision receives statutory

tolling for period during which state habeas petition pending). The statute of limitations is

not tolled, however, during the time between the date on which the relevant final decision

under 28 U.S.C. § 2244(d)(1) is issued and the date on which the first state collateral

challenge is filed. Nino v. Galaza , 183 F.3d 1003, 1006 (9th Cir. 1999). Thus, in the instant

case, the statute began to run on April 20, 2004, the day after the Board’s decision became

final, and continued to run for 326 days, until petitioner mailed his petition to the Superior

Court on March 12, 2005. 

Ordinarily, the one-year limitations period is tolled under § 2244(d)(2) from the time a

California prisoner files his first state habeas petition until the California Supreme Court

rejects his final collateral challenge. Carey v. Saffold, 536 U.S. 214, 219-20 (2006). 

Consequently, in the instant case, the limitations period would be tolled continuously from

March 12, 2005, until September 19, 2007. Respondent argues, however, that petitioner is

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In so doing, Evans reiterated the holding of Carey v. Saffold, 536 U.S. 214 (2002),

that the requirement that an appeal be filed without unreasonable delay applies, by analogy,

to the filing of petitions for appellate review under California’s collateral review process,

wherein a state prisoner may seek review of an adverse lower court decision by filing an

original petition rather than a notice of appeal. Id. at 192-93. 

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not entitled to such continuous tolling of the limitations period because petitioner

unreasonably delayed in filing his state habeas petitions in the Court of Appeal and the

California Supreme Court. In Evans v. Chavis, 546 U.S. 189 (2006), the United States

Supreme Court clarified that “only a timely appeal” tolls the one-year statute of limitations,

and “in California, ‘unreasonable’ delays are not timely.” Id. at 197 (emphasis in original).4

Where there is no clear indication from the state court as to whether a petition was timely

under California law, the federal court must itself examine the delay and determine whether

the petition was filed within what California would consider a reasonable period of time. Id.

at 197-98. Even when a California state habeas petition is denied “on the merits,” the federal

court must determine whether the petition was timely, if the issue of timeliness was not

expressly addressed by the state court. Id.

Here, respondent argues that petitioner is not entitled to statutory tolling for the 250

days that elapsed between the denial of his petition by the Superior Court on April 16, 2005,

and the mailing of petitioner’s petition to the Court of Appeal on December 22, 2005, and for

the 486 days that elapsed between the denial of his petition by the Court of Appeal on

January 5, 2006, and the mailing of his petition to the California Supreme Court on May 6,

2007.

Both the Court of Appeal and the California Supreme Court summarily denied

petitioner’s habeas petitions, without expressly addressing the issue of timeliness. Under

such circumstances, this Court must apply Chavis and determine whether the petitions were

filed within what California would consider a reasonable period of time. See id. at 197 (“If

the appearance of the words ‘on the merits’ [in a California state court decision denying

habeas relief] does not automatically warrant a holding that the filing was timely, the absence

of those words could not automatically warrant a holding that the filing was timely.”)

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In Chavis, there was an unexplained six-month delay between the denial of the

petitioner’s state habeas petition in the California Court of Appeal and the filing of his

subsequent petition in the California Supreme Court. Chavis found the delay unreasonable,

holding as follows: 

Six months is far longer than the short periods of time, 30 to 60 days, that most

States provide for filing an appeal to the state supreme court. It is far longer

than the 10-day period California gives a losing party to file a notice of appeal

in the California Supreme Court. We have found no authority suggesting, nor

found any convincing reasons to believe, that California would consider an

unjustified or unexplained 6-month delay reasonable. Nor do we see how an

unexplained delay of this magnitude could fall within the scope of the federal

statutory word “pending” as interpreted in Saffold. 

Id. at 201 (internal quotations and citations omitted). 

Chavis thus made clear that, in California, an unjustified delay of six months, or 180

days, is presumptively unreasonable. Here, as noted, the length of delay between the

Superior Court’s denial and petitioner’s filing in the Court of Appeal was 240 days, i.e., over

eight months, and the length of delay between the Court of Appeal’s denial and petitioner’s

filing in the California Supreme Court was 486 days, i.e., one year and four months. 

Consequently, the Court finds that, absent justification, California would consider such

delays unreasonable. In the instant petition, petitioner has offered no justification for the

delays, and none is apparent from the record. Accordingly, petitioner is not entitled to

statutory tolling for the 736 days of unreasonable delay. 

Further, petitioner is not entitled to statutory tolling for the 109 days that elapsed

between the denial of his petition by the California Supreme Court on September 19, 2007,

and the effective filing date of the instant petition on January 6, 2008. 

In sum, by the time petitioner filed his federal habeas petition, the following periods

of time had run against the statute of limitations: (1) 326 days before the filing of petitioner’s

Superior Court petition on March 12, 2005; (2) 240 days between the Superior Court’s

April 26, 2005, decision, and the filing of the petition in the Court of Appeal on

December 22, 2005; (3) 486 days between the Court of Appeal’s January 5, 2006, decision

and the filing of the petition in the California Supreme Court on May 6, 2007; and (4) 109

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days between the California Supreme Court’s decision, and the filing of the instant petition

on January 6, 2008. In total, 1161 days elapsed from the date on which the Board’s decision

to deny parole became final and the date on which petitioner filed the instant federal habeas

petition. As this number of days exceeds the one-year limitations period, respondent’s

motion to dismiss the petition as untimely will be granted.

CONCLUSION 

For the foregoing reasons, respondent’s motion to dismiss the petition as untimely is

hereby GRANTED and the petition for a writ of habeas corpus is hereby DISMISSED. 

This order terminates Docket No. 9. 

The Clerk shall close the file.

IT IS SO ORDERED.

DATED: June 21, 2010 _________________________ MAXINE M. CHESNEY

United States District Judge

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