1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JESUS ARREOLA,

Petitioner, No. CIV S-04-2666 GEB GGH P

vs.

CALIFORNIA BOARD OF

PRISON TERMS, et al., 

Respondent. FINDINGS AND RECOMMENDATIONS

 /

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254 filed December 20, 2004. Petitioner challenges the

February 15, 2001, decision of the California Board of Prison Terms (BPT) finding him

unsuitable for parole.

Pending before the court is respondent’s February 1, 2005, motion to dismiss on

grounds that this action is barred by the statute of limitations. On March 3, 2005, petitioner filed

an opposition to this motion. After carefully considering the record, the court recommends that

respondent’s motion be granted.

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA)

was enacted. AEDPA amended 28 U.S.C. § 2244(d)(1) so that it now provides,

Case 2:04-cv-02666-GEB-GGH Document 7 Filed 04/20/05 Page 1 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

A 1-year period of limitation shall apply to an application for a writ

of habeas corpus by a person in custody pursuant to the judgment

of a State court. The limitation period shall run from the latest of–

(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.

For habeas petitions challenging parole suitability hearings, the statute of

limitations runs from the date the BPT denies the administrative appeal. Redd v. McGrath, 343

F.3d 1077, 1082-1083 (9th Cir. 2003), citing 28 U.S.C. § 2244(a)(1)(D). In the instant case, the

BPT denied petitioner’s appeal on October 9, 2001. Motion to Dismiss, Exhibit C. Petitioner

had until October 9, 2002, i.e. one year from the denial of his appeal, to file a timely federal

habeas petition. 

Section 2244(d)(2) provides that 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 shall not be counted toward any period of limitation. 

In the instant case, petitioner filed a habeas corpus petition in the Fresno County

Superior Court on May 1, 2002. Id., Exhibit D. On July 18, 2002, the Superior Court denied this

petition. Id. On September 26, 2002, petitioner filed a habeas corpus petition in the California

Court of Appeal. Id., Exhibit E. On November 7, 2002, the California Court of Appeal denied

this petition. Id. On February 3, 2003, petitioner filed a habeas corpus petition in the California

Supreme Court. Id., Exhibit F. On November 12, 2003, the California Supreme Court denied

Case 2:04-cv-02666-GEB-GGH Document 7 Filed 04/20/05 Page 2 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

this petition. Id., Exhibit G. 

Petitioner’s state habeas petitions were pending for 560 days. Adding 560 days to

October 9, 2002, would make petitioner’s federal petition due on or before April 21, 2004. The

instant petition filed December 20, 2004, is not timely.

In Calderon v. U.S. District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997),

overruled on other grounds, Calderon v. U.S. District Court (Kelly), 163 F.3d 530 (9th Cir. 1998),

abrogated on other grounds, Woodford v. Garceau, ____U.S.____, 123 S. Ct. 1398 (March 25,

2003), the Ninth Circuit found that the statute of limitations could be equitably tolled if

extraordinary circumstances beyond a prisoner’s control made it impossible to file the petition on

time. Equitable tolling is “unavailable in most cases.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th

Cir. 1999). “Indeed, ‘the threshold necessary to trigger equitable tolling [under AEDPA] is very

high, lest the exception swallow the rule.’” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.

1998). Petitioner has the burden of demonstrating that equitable tolling is appropriate. Id. at

1065. 

Petitioner does not argue that he is entitled to equitable tolling. However,

attached to his opposition is a copy of a memorandum dated January 6, 2005 by the Law

Librarian at California State Prison-Solano where petitioner is incarcerated. This memorandum

states that there have been “significant interruptions in inmate access to the Level III law library

recently, so that legal work that needs to be completed for a specific filing date may be delayed.” 

Because these interruptions in law library access occurred well after petitioner’s federal petition

was due, the court does not find that the memorandum supports a claim for equitable tolling.

In his petition and opposition, petitioner contends that AEDPA does not apply to

this action. Petitioner is mistaken. Misunderstanding of the law does not entitled petitioner to

equitable tolling. Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).

For the reasons discussed above, the court finds that respondent’s motion to

dismiss should be granted. 

Case 2:04-cv-02666-GEB-GGH Document 7 Filed 04/20/05 Page 3 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

Accordingly, IT IS HEREBY RECOMMENDED that respondent’s February 1,

2005, motion to dismiss be granted. 

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 4/19/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

arr2666.157

Case 2:04-cv-02666-GEB-GGH Document 7 Filed 04/20/05 Page 4 of 4