B. LYNN WINMILL, Chief District Judge.
Petitioner Rickie Storm filed a Petition for Writ of Habeas Corpus challenging his revocation of parole. (Dkt. 1, 6.) Respondent Brent Reinke filed a Motion for Summary Dismissal, asserting that the claims are untimely. (Dkt. 10.) Petitioner filed a Response to the Motion, and Respondent filed a Reply. (Dkt. 12, 13.) Also pending are several other motions filed by the parties. (Dkt. 8, 14, 16, 17.)
Having reviewed the record and the parties' briefing, the Court concludes that oral argument is unnecessary. Accordingly, the Court enters the following Order.
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily dismiss a petition for writ of habeas corpus when "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." In such case, the Court construes the facts in a light most favorable to the petitioner. It is appropriate for the Court to take judicial notice of court dockets from state court proceedings. Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
Petitioner was convicted of two counts of grand theft and one count of possession of a controlled substance in 2004. (State's Lodging A-1, p. 53.) He was sentenced to unified terms of 14 years on the grand theft counts, and 7 years on the possession count. (Id.) The Petition for Writ of Habeas Corpus filed in this action challenges a parole revocation. The relevant dates and events are as follows:
Respondent argues that the Petition for Writ of Habeas Corpus in this action was filed beyond the statute of limitations deadline because Petitioner had two large gaps in time that equal more than 365 days-one after his parole revocation and one after the remittitur was issued in his state habeas action.
The Anti-Terrorism and Effective Death Penalty Act (AEDPA), enacted April 24, 1996, established a one-year statute of limitations for federal habeas corpus actions. See 28 U.S.C. § 2244(d)(1). Because Petitioner's federal habeas corpus petition was filed after AEDPA's enactment date, it is subject to the one-year statute of limitations. The statute provides several alternative dates for the beginning of the statute of limitations period, depending upon the type of decision or judgment at issue. The statute of limitations on a parole claim runs from "the date on which the factual predicate of the . . . claims presented could have been discovered through the exercise of due diligence" under § 2244(d)(1)(D), rather than from "the date on which the judgment became final" under § 2244(d)(1)(A), because an administrative decision is not a judgment. Redd v. McGrath 343 F.3d 1077 (9th Cir. 2003); Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004); Mardesich v. Cate, 668 F.3d 1164, 1171-72 (9th Cir. 2012).
"As a general rule, the state agency's denial of an administrative appeal is the `factual predicate' for such habeas claims." Mardesich, 668 F.3d at 1172. In the parole denial context, the federal statute of limitations does not begin running until the administrative appeal is denied, subject to the petitioner receiving proper notice of the denial. Redd, 343 F.3d at 1082 (California parole scheme); see also Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004) (Oregon parole scheme).
"Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance." Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001) (quoting Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)). Similarly, "a pro se petitioner's lack of legal sophistication is not, by itself, and extraordinary circumstance warranting equitable tolling." Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).
Because Petitioner is challenging a parole revocation decision rendered by an administrative body, his statue of limitations began to run on "the date on which the factual predicate of the claim or claims to be presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D); Redd, 343 F.3d at 1082. The precise issue in the current Motion for Summary Dismissal is which ICPP decision functions as the "factual predicate," according to Idaho law.
Parole revocation in Idaho is governed by the Idaho Administrative Code — Rules of the Commission of Pardons & Parole (IDAPA) § 50.01.01.400, entitled "Parole Revocation Process." IDAPA § 50.01.01.400.09(c)(iv) provides that "the offender is entitled to a verbal or written decision within twenty (20) days of the hearing" on parole revocation. It can be argued that this decision is the "factual predicate" if there is no administrative appeal open to the inmate.
This is where Idaho law becomes murky. IDAPA 50.01.01.500, entitled "Self-Initiated Progress Report" (SIPR), provides: "An inmate may appeal the last parole decision of the commission" (emphasis added). That section next states, "An inmate making a request for reconsideration of parole denial must initiate the process by submitting an application" (emphasis added). IDAPA 50.01.01.500.01.
The IDAPA does not mention an administrative appeal process for parole revocation. The SIPR form does not specify whether it is for parole denial, parole revocation, or both. (Dkt. 13-1, p. 2.). Here, Petitioner used the SIPR for parole revocation; nothing in the record or in Idaho case law indicates that its use for a parole revocation appeal is improper.
The difficulty for a federal habeas corpus statute of limitations analysis is that IDAPA 50.01.01.500.01(g) provides: "The [SIPR] petition may be submitted no sooner than six (6) months following the last hearing" (emphasis added).
IDAPA 50.01.01.500.01(h) and 50.01.01.500.02 provide that, once an SIPR petition or "appeal" is submitted, the ICPP, in executive session or via special hearing, will consider the petition. This is the same entity that made the original parole revocation decision, and, thus, it is not a traditional "appeal" in the sense that a higher governing body is reviewing the decision of the original decision-making entity. It is also a non-traditional "appeal," because the SIPR instructs the inmate to "[a]ddress the circumstances that have changed since your last hearing." (Dkt. 13-1, p. 1.)
While Idaho law provides that there is no direct judicial appeal from parole decisions, see Carman v. Idaho Comm'n of Pardons and Parole, 809 P.2d 503 (Idaho 1991),
Therefore, under the applicable Idaho rules and statutes, Petitioner had two potential avenues of relief open to him: an administrative appeal and a judicial petition for writ of habeas corpus. The administrative appeal is an option that was not open to Petitioner until six months after the administrative decision was rendered. (Dkt. 13-1, p. 2.) The habeas corpus avenue was open immediately, and has no statute of limitations.
Respondent suggests that the Court follow the reasoning in Leombruno v. Craven, 2006 WL 753229 (D. Idaho 2006):
Id. at *3.
The reasoning in Leombruno is sound, and the Court sees no reason to take a different course here. In Petitioner's case, he chose to use both remedies. The Court concludes that the Petition is timely under either option suggested in Leombruno.
First, if the "factual predicate" for Petitioner's claims is finality of the administrative appeal, the six months between the decision are not counted toward the federal statute of limitations because of the lack of finality of the July 14, 2009 parole revocation decision. That decision became final on May 4, 2010, upon denial of the SIPR. But, because an appeal of the state habeas petition was pending at that time, the federal statute of limitations was statutorily tolled until June 15, 2011, when the Idaho Supreme Court issued its remittitur in the habeas case. The equation for that theory is that the federal statute of limitations started on May 4, 2010, with tolling beginning on that date because of the pending habeas petition and ending on June 15, 2011; at that point, the statute began with 365 days left; and only 197 days elapsed before the filing of the federal petition on December 29, 2011, leaving Petitioner with 168 days to spare.
Second, as to applying equitable tolling in the present case, Respondent argues that Petitioner is unlike Mr. Leombruno, because Petitioner did not show diligence in pursuing his remedies. In Pace v. DiGuglielmo, 544 U.S. 408 (2005), the Court clarified that,"[g]enerally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way." Id. at 418.
Respondent argues that Petitioner could have filed his SIPR at the six-month mark, which was January 14, 2010, but he did not file it until April 9, 2010, some 85 days later. In Evans v. Chavis, 546 U.S. 189 (2006), where a similar issue was at stake-application of federal habeas corpus statutory tolling within the context of California's unique post-conviction habeas corpus and appeal process-the United States Supreme Court made conclusions about what was and was not an "unreasonable delay" in filing an appeal under California's statutory scheme that provides no set time limits for or between habeas corpus filings:
Id., 546 U.S. at 210 (citing Carey v. Saffold, 536 U.S. 214 (2002)). While the issue in both Chavis and Saffold was statutory tolling, and not equitable tolling, the underlying issue of "within a reasonable time" can be analogized to the requirement of "diligence" in the equitable tolling analysis.
Here, after a six-month wait, the first date Petitioner could file an administrative appeal (an SIPR) was January 14, 2011. He filed his SIPR on April 9, 2011, which was 85 days after the first available date. The Court concludes that 85 days is not far from the 30-60 days that the United States Supreme Court has deemed "reasonable" for pursuing post-conviction relief, given the fact that Petitioner also had begun a state habeas corpus action within 41 days of the beginning of the SIPR "appeal period."
The equitable tolling equation also tallies up in favor of Petitioner: the statute of limitations started when the parole revocation decision was issued on July 14, 2010, and that time was equitably tolled until Petitioner filed his state habeas petition on February 24, 2011, when the time was statutorily tolled; the federal statute began running on issuance of the remittitur in that action on June 15, 2011, with 365 days left; only 197 days elapsed between that date and the filing of the federal petition on December 29, 2011, again leaving Petitioner with 168 days to spare.
Accordingly, Petitioner will be permitted to proceed on his claims.
Respondent has filed a Motion for Extension of Time to File Answer or Pre-Answer Motion, with supporting Affidavit. (Dkts. 8, 8-1.) Good cause appearing, the Motion will be granted, and the Motion for Summary Dismissal (Dkt. 10) will be considered timely.
Petitioner's Request for a Status Conference and Scheduling Order (Dkt. 15) will be granted in part and denied in part. A schedule for the briefing of the merits of the claims is set forth herein below.
Petitioner has filed a Request to Pursue Discovery. (Dkt. 16.) He also filed a Motion for Discovery (Dkt. 17), setting forth various types of information he wishes to obtain from Respondent, such as a copy of the "Behavior Contract" for parole, a copy of the "Sex Offender Supervision Agreement," copies of emails and other communication between himself and the parole officer, Darwin Cameron, and other such items.
The merits of the claims in a federal habeas corpus petition generally are decided on the record that was before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1400 (2011). Only in limited circumstances may the state court record be supplemented in federal court, such as: (1) when a state court did not decide a claim on the merits, and the claim is properly before the federal court; (2) when the state court factual determination was unreasonable; (3) when a petitioner wishes to show cause and prejudice in a procedural default setting; or (4) when a petitioner is trying to show actual innocence to overcome a procedural default or statute of limitations issue. Because Petitioner has not shown that any such grounds exist for discovery, his Request and Motion will be denied.
