Free Reply to Opposition - District Court of California - California

Case 4:07-cv-03774-SBA

Document 6

Filed 12/11/2007

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1 'EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 JULIE L. GARLAND Senior Assistant Attorney General 4 ANYAM. BINSACCA Supervising Deputy Attorney General 5 ELIZABETH S. KIM, State Bar No. 166599 Deputy Attorney General 6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Telephone: (415) 703-5715 Fax: (415) 703-5843 8 Email: [email protected] 9 Attorneys for Respondent 10 11 12 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION Respondent Curry moved to dismiss Petitioner Contreras's habeas corpus petition on the ground that he filed his petition beyond the one-year statute oflimitations. In his opposition, Petitioner alleges that his petition was timely filed because: (1) the California Supreme Court's decision denying his habeas corpus petition was not final for 30 days; (2) his federal petition was filed earlier under the mail box rule; and (3) he is entitled to statutory tolling despite the unreasonable delay in filing his habeas petition in the state court of appeal. For the reasons set forth below and in the moving papers, Petitioner's habeas petition should be dismissed as untimely.
Reply to Opp'n to Mot. to Dismiss Contreras v, Curry C07-03774 SBA

GILBERT CONTRERAS, Petitioner,

C07-03774 SBA REPLY TO OPPOSITION TO MOTION TO DISMISS Judge: Respondent. The Honorable SaundraB. Armstrong

v.
BEN CURRY, Warden

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Case 4:07-cv-03774-SBA

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REPLY PETITIONER'S HABEAS PETITION IS UNTIMELY.
Petitioner alleges that his petition was timely filed because California Supreme Court's denial of his habeas petition, filed-endorsed April 11, 2007, was not final for 30 days. (Opp'n at

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5 2.) Petitioner is incorrect, however, because under Rule 8.532(b)(2) of the California Rules of 6 Court, a California Supreme Court's decision denying a writ petition within the Court's original

7 jurisdiction, without the issuance of an alternative writ or an order to show cause, is final on 8 filing." Because the California Supreme Court denied Petitioner's habeas petition without 9 issuing an alternative writ or an order to show cause (Ex. 3 to Mot. to Dismiss), the court's 10 decision was final on April 11, 2007. Thus, as of April 11, 2007, because Petitioner had waited 11 almost exactly eleven months to file his superior court petition after exhausting his

12 administrative remedies, he had one-month-one-day to file his federal petition assuming he is 13 entitled to statutory tolling of the period of time his state habeas petitions were pending. 28 14 U.S.C. § 2244(d)(2). 15 Petitioner is not entitled to statutory tolling, however, because his state court petition was

16 not properly pending when he delayed filing his petition to the state appellate court by eighty17 eight days after the superior court's denial of his petition. (Exs. 1-2.) Thus, Petitioner is not 18 entitled to statutory tolling of the eighty-eight days of unexplained and unreasonable delay from 19 October 12, 2006 to January 19,2007. Carey v. Saffold, 536 U.S. 214,221 (2002) (a state 20 21 22 23 24 25 26 27 28 1. The California Supreme Court has original jurisdiction in habeas corpus proceedings. Cal. Const. art. VI, § 10.
Reply to Opp'n to Mot. to Dismiss Contreras v. Curry C07-03774 SBA

petition is only "pending" if filed within a "reasonable time"); Culver v. Director ofCorrections, 450 F.Supp.2d 1135, 1140 (C.D. Cal. 2006), citing Saffold at 853-54 (71-day and 97-day delays unreasonable because clearly longer than the 30 to 60 days most states provide for filing an appeal to the state supreme court, and "far longer than the 10-day period California gives a losing party to file a notice of appeal in the California Supreme Court"). Thus, even applying the mailbox rule, and thus using the May 8, 2007 date as the date his federal habeas petition is

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1 deemed to be filed, Petitioner nonetheless filed his habeas petition more than two months past 2 the one-year statute oflimitations as demonstrated below:

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· ·

Disciplinary Hearing

December 7,2004 (found guilty) May 25,2005

Director's Level Inmate Appeal Decision

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(Petitioner files superior court petition eleven months after exhausting his administrative remedies) Monterey Superior Pet. Filed 4/25/06 Denied 10/23/06 October 23, 2006 to January 19, 2007 period not tolled

· · ·

Cal. Ct. of Appeal Cal. Supreme Court

Pet. Filed 1/19/07 Denied 2/20/07 Pet. Filed 3/12/07 Denied 4/11/07

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U.S. Dist. Ct. (07-3774) Pet. Filed 5/8/07 (using mail box rule) CONCLUSION

Because Petitioner's habeas petition is untimely, respondent requests a dismissal of the

13 petition.

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Dated: December 11, 2007 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General ANYAM. BINSACCA Supervising Deputy Attorney General

~~,&-ELIZABETH S. KIM Deputy Attorney General Attorneys for Respondent
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Reply to Opp'n to Mot. to Dismiss

Contreras v. Curry C07-03774 SBA

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DECLARATION OF SERVICE BY U.S. MAIL
Case Name: Case No.: I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day inthe ordinary course of business: On December 11, 2007, I served the attached

Contreras v. Curry C07-03774 SBA

REPLY TO OPPOSITION TO MOTION TO DISMISS
by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102 addressed as follows:
w7004,

Gilbert Contreras E-59058 Correctional Training Facility P.O. Box 689 Soledad, CA 93960-0689 m pro per I declare under penalty of perjury under the laws of the State of California the foregoing is tme and correct and that this declaration was executed on December 11, 2007, at San Francisco, California.

M. Xiang Declarant
40195895.wpd

Signature