Free Motion to Dismiss - District Court of California - California

Case 5:07-cv-04540-JF

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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 ANYA M. BINSACCA Supervising Deputy Attorney General STEVEN G. WARNER, State Bar No. 239269 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5747 Fax: (415) 703-5843 Email: [email protected]

9 Attorneys for Respondent Warden Ben Curry SF2008400828 10 11 12 13 14 15
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

AN DAO, Petitioner, v. BEN CURRY, Respondent.

Case No. C 07-4540 JF RESPONDENT'S NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES Judge: The Honorable Jeremy Fogel

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TO PETITIONER AN DAO, IN PRO PER: PLEASE TAKE NOTICE that Respondent moves to dismiss the Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254 and Rule 4 of the Rules Governing § 2254 Cases in the

24 United States District Courts, on the ground that the petition is brought beyond the statute of 25 limitations. This motion is based on the notice and motion, the supporting memorandum of 26 points and authorities and exhibits, the petition for writ of habeas corpus, the court records in this 27 action, and other such matters properly before this Court. 28 ///
Resp't's Not. of Mot. & Mot. to Dismiss; Supporting Mem. of P. & A.
Dao v. Curry

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INTRODUCTION Dao, an inmate at the Correctional Training Facility, represents himself in this habeas corpus action. Dao is lawfully in the custody of the California Depaltinent of Corrections and

4 Rehabilitation following his August 18, 1989 conviction for second-degree murder and attempted murder, for which he was sentenced to fifteen years to life. (Pet, 2.) Dao challenges the Board of Parole Hearings' decision denying him parole at a 2005 subsequent parole consideration hearing. (Pet. 7.) This Court should dismiss the petition because it is barred by the one-year statute of limitations. 9 '10 11 ARGUMENT THE PETITION IS BARRED BY THE STATUTE OF LIMITATIONS. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to every

12 federal petition for writ of habeas corpus filed on or after April 24, 1996. Lindh v. Murphy, 521 13 U.S. 320, 326 (1997). Therefore, AEDPA applies to Dao's petition. 14 AEDPA provides that a "1-year period of limitation shall apply to an application for writ of

15 habeas corpus by a person in custody pursuant to the judgment of a state court." 28 U.S.C. § 16 2244(d)(1) (2000). In Redd v. McGrath, 343 F.3d 1077, 1081-82 (9th Cir. 2003), the court 17 explained when the limitations period starts for a non-conviction proceeding such as Dao's 2005 18 subsequent parole consideration hearing. The court applied the AEDPA section which provides

19 that the period starts on "the date on which the factual predicate of the claim or claims presented 20 could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D); 21 Redd, 343 F.3d at 1082, 1085. A petitioner challenging an administrative proceeding learns of 22 his claims on the date that his administrative appeal is denied. Redd, 343 F.3d at 1079, 1084. 23 The statute of limitations starts to run on the next day. Id. at 1084. 24 The statute of limitations is tolled during the entire period that the petitioner is seeking state

25 collateral review of his claims, 28 U.S.C. § 2244(d)(2), beginning when the petitioner initially 26 files his habeas claim in the state superior court until the state supreme court denies the petition. 27 Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). 28 As of 2004 there has not been an administrative appeal process by which an inmate can
Resp't's Not. of Mot. & Mot. to Dismiss; Supporting Mem. of P. & A. ' Dao v. Curry Case No. C 07-4540 IF

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challenge a Board decision. Thus, Dao could have discovered the factual predicate of his claims

2 challenging his 2005 hearing no later than the date that hearing was final. Here Dao's hearing 3 was final on October 25, 2005. (Ex. 1, Subsequent Parole Consideration Hearing [Transcript], at

4 47.) Thus, Dao's federal habeas petition must have been filed one year later, unless time was 5 tolled. 28 U.S.C. § 2244(d)(l)-(2). Dao's superior court petition was filed on September 29, 6 2006. (Ex. 2, Pet. for Writ of Habeas Corpus, at 1.) The time between the date the Board's 7 decision became final and his superior court petition was filed is 338 days. In addition, the time 8 between the California Supreme Court's denial of Dao's petition for review on July 11, 2007 9 (Ex. 3, Supreme Court Denial) and the filing of this federal petition on August 31, 2007, is 50 10 days and is not tolled. See 28 U.S.C. § 2244(d)(2). Thus, 388 (338 + 50) days are not tolled and 11 Dao's federal petition is untimely by 23 days. Accordingly, this Court should deny Dao's

12 petition because it was filed beyond AEDPA's one-year statute of limitations. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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CONCLUSION This Court should dismiss the petition because it exceeds the one-year AEDPA filing deadline. Dated: May 5, 2008 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 ANYA M. BINSACCA Supervising Deputy Attorney General

STEVEN G. WARNER Deputy Attorney General Attorneys for Respondent

Resp't's Not. of Mot. & Mot. to Dismiss; Supporting Mem. of P. & A.

Dao v. Curry

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: No.: Dao v. Curry

C 07-4540 JF

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 in the ordinary course of business. On May 5, 2008, I served the attached RESPONDENT'S NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES 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 94102-7004, addressed as follows: An Dao, E-28538 Correctional Training Facility P.O. Box 689 Soledad, CA 93960-0686 In Pro Per I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on May 5, 2008, at San Francisco, California.

L. Santos Declarant
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