United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAMUEL E. WEBB, 

Petitioner,

v.

BEN CURRY, warden, 

Respondent. /

No. C 09-054 MHP (pr)

ORDER OF DISMISSAL 

INTRODUCTION

Samuel E. Webb, a pro se prisoner, has filed a petition for writ of habeas corpus

challenging a 2006 parole denial. Now before the court for consideration is respondent's

motion to dismiss the petition as untimely. For the reasons discussed below, the court finds

the petition to be barred by the statute of limitations and dismisses it. 

BACKGROUND

Webb was convicted in Los Angeles County Superior Court of second degree murder

and was sentenced to 15 years to life in prison. His habeas petition does not challenge his

conviction but instead challenges a June 15, 2006 decision of the Board of Parole Hearings

("BPH"), that found him not suitable for parole. The BPH's decision became final on

October 13, 2006. Petition, Exh. A, 6/15/06 RT 100.

Webb filed several state petitions for collateral review before filing this action. 

Webb filed his first state habeas petition in the Los Angeles County Superior Court. 

That petition was filed on April 23, 2007, and denied on September 13, 2007. 

Webb filed his second state habeas petition in the California Court of Appeal. That

petition was filed on February 14, 2008, and denied on February 28, 2008. 

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Webb filed his third state habeas petition in the California Supreme Court. That

petition was filed on May 18, 2008, and denied on October 22, 2008. 

Next, Webb filed this action. The petition has a December 22, 2008 proof of service,

the envelope it arrived in has a December 23, 2008 postmark, and the petition was stamped

"filed" at this court on January 7, 2009. Due to Webb's status as a prisoner proceeding pro

se, he receives the benefit of the prisoner mailbox rule, which deems most documents filed

when they are given to prison officials to mail to the court rather than the day the document

reaches the courthouse. See Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003). For

purposes of the present motion, each of his petitions is deemed filed on the day he signed it,

on the assumption that he gave each one to prison officials to mail on the day he signed it

except where the proof of service shows a later date should be used. 

DISCUSSION

A petition for writ of habeas corpus filed by a state prisoner must comply with the

statute of limitations in 28 U.S.C. § 2244(d). Section 2244's one-year limitation period

applies to all habeas petitions filed by persons in “custody pursuant to the judgment of a

State court,” even if the petition challenges an administrative decision rather than a state

court judgment. Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004) (quoting 28 U.S.C. 

§ 2244(d)(1)). Although the statute of limitations period has four possible starting dates, 

§ 2244(d)(1)(D) usually applies to prisoners challenging administrative decisions such as

parole denials, i.e., the limitation period starts on the "date on which the factual predicate of

the claim or claims presented could have been discovered through the exercise of due

diligence." The one-year limitations period begins on the date the administrative decision

becomes final. See Shelby, 391 F.3d at 1066 (limitation period began the day after prisoner

received timely notice of the denial of his administrative appeal challenging disciplinary

decision); Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003) (limitations period began

when BPT denied prisoner's administrative appeal challenging the BPT's decision that he was

unsuitable for parole). The "factual predicate" of the habeas claims is the finality of the

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adverse administrative decision, and not the denial of the state habeas petition. See id. at

1082. 

The BPH's decision denying parole for Webb became final on October 13, 2006. As

Redd explains, the limitations period begins for a prisoner challenging an administrative

decision begins when that decision becomes final, rather than when the state collateral

review of the decision is finished. The limitations period started on October 14, 2006, and

the presumptive deadline for Webb to file his federal habeas petition therefore was October

14, 2007. 

The one-year limitations period is tolled 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). A prisoner challenging an

administrative decision can receive statutory tolling for the period when state habeas

petitions are pending. See Redd, 343 F.3d at 1084. Tolling is available for the intervening

period between state habeas petitions but only when the petitioner files the later state habeas

petition “within what California would consider a 'reasonable time.'” Evans v. Chavis, 546

U.S. 189, 198 (2006); see Carey v. Saffold, 536 U.S. 214, 219-20 (2002). 

Webb receives some statutory tolling for the pendency of his state court challenges,

but not enough to make his federal petition timely. Specifically, the limitations period was

tolled from April 23, 2007 through September 13, 2007, when his petition was on file in the

Los Angeles County Superior Court. Before Webb filed that petition, 191days of the

limitations period had passed. After the superior court denied his petition on September 13,

2007, the clock resumed ticking and he had 174 days to get to federal court. For the reasons

explained below, he does not receive statutory tolling for the 153-day gap between the denial

of the superior court petition and the filing of his second petition in the California Court of

Appeal on February 14, 2008 because he delayed too long in getting to that court and it was

an unjustified delay. He does, however, receive tolling for the 14 days during which his

petition was on file in the California Court of Appeal. After the state appellate court denied

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his petition on February 28, 2008, the clock resumed ticking and he had 21 days (or until

March 21, 2008) to get to federal court because 344 days (consisting of the 191 days before

the filing of the superior court petition plus the 153 days between the denial of that petition

and the filing of the petition in the state appellate court) of the one-year limitations period

had passed. Webb next filed a petition in the California Supreme Court, but by the time he

filed it on August 10, 2008, the limitations period had already expired and the petition had no

tolling effect. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection

2244(d) does not permit the reinitiation of the limitations period that has ended before the

state petition was filed,” even if the state petition was timely filed). When he filed his federal

petition in this action on December 22, 2008, he was nine months past the deadline. 

Webb contends that the 5-month delay between the denial of his petition in the

superior court and the filing of his petition in the California Court of Appeal should not be

considered an unreasonable delay because it was half that in In re Burdan, 169 Cal. App. 4th

18, 30-31 (Cal. Ct. App. 2008). Burdan held that a 10-month delay between the superior

court's denial of a habeas petition challenging a parole denial and the filing of the next

petition in California Court of Appeal not to be an unreasonable delay because there was no

potential prejudice to the state. This court finds Burdan not to be controlling on the question

of timeliness. First, the circumstances under which a state petition is deemed “pending” for

purposes of § 2244(d)(2) is a question of federal law rather than state law. Welch v. Carey,

350 F.3d 1079, 1080 (9th Cir. 2003) (en banc). Second, Burdan cannot be sensibly

harmonized with U.S. Supreme Court precedent. In Saffold, the Supreme Court had "held

that timely filings in California (as elsewhere) fell within the federal tolling provision on the

assumption that California law in this respect did not differ significantly from the laws of

other States, i.e., that California's 'reasonable time' standard would not lead to filing delays

substantially longer than those in States with determinate timeliness rules." Chavis, 546 U.S.

at 199-200. Construing Burdan to mean that any delay is reasonable when a petitioner is

challenging a parole denial would make California's scheme so unlike that contemplated in

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Saffold and Chavis that those cases would be stripped of their rationale and purpose. By

giving parole habeas petitioners an endless amount of time to pursue the next level of review,

Burdan would make California unlike any other jurisdiction. Burdan would prove the

assumption Saffold made to be wrong, and make inappropriate the Saffold rule that allows

gap tolling for that period of time (expected to be relatively short and in the neighborhood of

30 or 60 days) between levels of review. Further, Burdan conflicts with Chavis in that the

latter case confronted a 6-month gap between levels of state court review and determined that

"an unexplained delay of this magnitude" did not fall within the scope of the word "pending"

as interpreted in Saffold. Chavis, 456 U.S. at 201. If six months is too long, Burdan's

forever (or even ten months) surely is too long. Third, neither the language of § 2244(d) nor

any Supreme Court precedent suggests that the timeliness analysis should differ when it is a

parole decision rather than a conviction being attacked. Finally, Burdan's ruling rested on the

absence of a showing of prejudice to respondent, but the importation of a prejudice

requirement to a statute of limitations analysis would be at odds with the general rule that a

statute of limitations (unlike the laches doctrine) usually does not require a showing of

prejudice to the defendant or respondent. See generally Telink, Inc. v. United States, 24 F.3d

42, 45 (9th Cir. 1994). 

 Having rejected Burdan as controlling the question at hand, the court concludes that

Webb does not receive statutory tolling for the 5-month gap between the denial of his habeas

petition in the superior court and the filing of his petition in the California Court of Appeal,

because he unjustifiably delayed too long in going from one level to the next. See Chavis,

546 U.S. at 197 (noting that six months is far longer than the 30 to 60 days that most states

provide for filing an appeal, the Court held that an unjustified or unexplained 6-month delay

between post-conviction applications in California is not “reasonable” and does not fall

within Saffold’s definition of the term “pending”); see, e.g., Waldrip v. Hall, 548 F.3d 729,

735-36 (9th Cir. 2008) (delay of at least eight months not “reasonable” and thus not subject

to tolling); Gaston v. Palmer, 447 F.3d 1165, 1167 (9th Cir. 2006) (no “gap tolling” during

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delays of 10, 15 and 18 months between California habeas petitions). With these federal

cases holding that delays of far less than the delay in Burdan were not reasonable for

purposes of determining whether the intervening period between state habeas petitions ought

to be considered as falling within Saffold's definition of pending, it cannot be said that a

habeas petitioner – even one challenging a parole denial – can take a lengthy amount of time

between state petitions and have continuous statutory tolling of the federal limitations period

from start to finish in the state court system. Cf. Ferguson, 321 F.3d at 823 (Oregon’s twoyear limitation period for the filing of state habeas petitions does not alter the operation of

the AEDPA, even though prisoners who take full advantage of the two-year period will

forfeit their right to federal habeas review). Webb's contention that his 5-month delay was

reasonable because he was unrepresented by counsel is not persuasive because the vast

majority of habeas petitioners are unrepresented by counsel; Congress and the courts are

aware of that in making and interpreting the statute of limitations. Webb's other contention,

that his delay should be excused because unidentified inmates who helped him were

unavailable due to transfers or parole at unexplained times, is also unpersuasive due to its

utter lack of specificity and evidentiary support. Moreover, he has not explained why he

could not prepare his petition himself, especially since the superior court and appellate court

petitions apparently raised the same issues and this was at least his second trip through the

state habeas process before filing a federal petition, see Order Denying Petition, p. 2, in

Webb v. Kane, No. 06-4839 MHP (noting that Webb had filed habeas petitions in the state

superior court, appellate court and supreme court before filing his federal petition

challenging the 2003 denial of parole).

The limitations period can be equitably tolled because § 2244(d) is a statute of

limitations and not a jurisdictional bar. Calderon v. United States District Court (Beeler),

128 F.3d 1283, 1288 (9th Cir. 1997), cert. denied, 523 U.S. 1, and cert. denied, 523 U.S.

1061 (1998), overruled in part on other grounds by Calderon v. United States District Court

(Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060 (1999). Webb

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did not argue or demonstrate that there is any reason for equitable tolling in his case. 

The federal petition was not filed until nine months after the statute of limitations deadline

had passed. The petition is barred by the habeas statute of limitations. 

CONCLUSION

Respondent’s motion to dismiss is GRANTED. (Docket # 7.) The petition for writ of

habeas corpus is dismissed because it was not filed before the expiration of the limitations

period in 28 U.S.C. § 2244(d)(1). The clerk will close the file. 

IT IS SO ORDERED.

DATED: January 15, 2010 

Marilyn Hall Patel

United States District Judge

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