Opinion
No. C 01-3188 CRB (PR), (Doc # 7)
April 19, 2002
ORDER GRANTING MOTION TO DISMISS
Petitioner, a state prisoner incarcerated at Pelican Bay State Prison ("PBSP"), seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a 1991 disciplinary action that resulted in the loss of 360 days of time credits. He alleges that he was denied due process because he was found guilty of assisting in the stabbing on another inmate based on the uncorroborated and unreliable hearsay statement of a sole confidential informant. Per order filed on November 19, 2001, the court found that petitioner's claim appeared colorable under § 2254 when liberally construed, and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent instead moved to dismissed the petition as untimely, both as a procedural default matter and under the statute of limitation set forth in 28 U.S.C. § 2244 (d). Petitioner has filed an opposition.
BACKGROUND
On August 21, 1991, a prison disciplinary committee found petitioner guilty of assisting in the stabbing assault of another inmate (Cal. Code Regs. tit. 15, § 3005(c)) and assessed him 360 days of time credit.
On July 17, 1996, petitioner filed an administrative grievance challenging the 1991 guilty finding and disciplinary action. It was rejected as untimely.
On November 10, 1997, petitioner filed a petition for a writ of habeas corpus in the Superior Court of the State of California in and for the County of Del Norte. On November 24, 1997, it was denied as untimely: "A delay of more than six (6) years is excessive." Torres v. Cambra, No. 97-0299X, slip op. at 1 (Cal.Super.Ct. Nov. 24, 1997) (citations omitted) (Resp't Ex. D). (Petitioner unsuccessfully moved for reconsideration at least three times thereafter.)
On July 5, 2000, petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal. On July 13, 2000, it was denied as untimely and for failure to exhaust administrative remedies: "Petitioner has not adequately explained the reason for the delayed presentation of his claims. Additionally, petitioner failed to completely exhaust his administrative remedies." In re Torres, No. A091752, slip op. at 1 (Cal.Ct.App. July 13, 2000) (citations omitted) (Resp't Ex. E).
On October 12, 2000, petitioner filed a petition for a writ of habeas corpus in the Supreme Court of California. On March 28, 2001, it was denied as untimely and for failure to exhaust administrative remedies: "Petition for writ of habeas corpus is DENIED. (See In re Dexter (1979) 25 Cal.3d 921; In re Robbins (1998) 18 Cal.4th 770, 780.)." In re Torres, No. S092461, slip op. at 1 (Cal. Mar. 28, 2001) (Resp't Ex. F).
On August 20, 2001, petitioner filed the instant federal petition.
DISCUSSION
The procedural default doctrine forecloses federal review of a state prisoner's federal habeas claims if those claims were defaulted on in state court pursuant to an independent and adequate state procedural rule. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). If the court finds an independent and adequate state procedural ground, federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice. See id. at 750; Park v. California, 202 F.3d 1146, 1150 (9th Cir. 2000).
The Ninth Circuit's recent opinion in Bennett v. Mueller, 273 F.3d 895 (9th Cir. 2001), makes clear that the untimeliness rule invoked by the state courts in this case constitutes and independent and adequate state ground barring federal habeas relief. In Bennett, the court held that the Supreme Court of California's denial of a state habeas petition for untimeliness (even if the court simultaneously reached the merits) constitutes an independent procedural ground barring federal relief if the bar was imposed after the state high court's August 3, 1998 opinion in In re Robbins, 18 Cal.4th 770 (1998). See Bennett, 273 F.3d at 899-901. The court also held that the untimeliness rule constitutes an adequate state procedural ground if some of the delay at issue occurred after the state high court's July 29, 1993 opinion in In re Clark, 5 Cal.4th 750 (1993). See id. at 901-02. The instant case falls squarely within the rationale of Bennett: The Supreme Court of California invoked the untimeliness rule against petitioner (by citingRobbins) more than 2 1/2 years after Robbins was decided, and petitioner delayed newly 3 years after Clark before he filed his first challenge to the August 21, 1991 disciplinary finding of guilt. Petitioner's federal claim is procedurally defaulted.
California's "untimeliness bar" requires that prisoners who do not file their habeas petitions within a specified time frame establish either (i) absence of substantial delay; (ii) good cause for the delay; or (iii) that his claims fall within an exception to the bar of untimeliness. In re Robbins, 18 Cal.4th at 784. In In re Clark, 5 Cal.4th 750, 797-98 (1993), the Supreme Court of California attempted to delineate these exceptions, and in so doing included "error of constitutional magnitude [that] led to a trial that was fundamentally unfair." Id. This compelled the conclusion that a California court's invocation of the untimeliness rule was not based solely on independent and adequate state grounds. See La Crosse v. Kernan, 244 F.3d 702, 706-707 (9th Cir. 2001). This in turn meant that California's untimeliness rule was not a valid basis for a procedural default in federal court as to state habeas petitions denied before August 3, 1998, when the Supreme Court of California announced that it would no longer consider federal law when deciding whether claims are procedurally defaulted. See id. (citing In re Robbins). Bennett made clear that California's untimeliness rule, as expressed in Clark and Robbins, is an independent state procedural ground for state habeas petitions denied after August 3, 1998. Bennett, 273 F.3d at 899.
Before Clark, the untimeliness standards were applied inconsistently to some fact patterns and therefore the rule was deemed not adequate. See Calderon v. U.S. District Court (Bean), 96 F.3d 1126, 1130 (9th Cir. 1996). In Clark, however, the Supreme Court of California set out a definite rule for prospective application which several courts have observed has been applied regularly and consistently since Clark.See, e.g., Deere v. Calderon, 890 F. Supp. 893, 900 (C.D. Cal. 1995).Bennett made clear that since Clark the untimeliness rule is adequate.Bennett, 273 F.3d at 902.
Petitioner can obtain federal habeas review of his federal due process claim only if demonstrates cause for the procedural default and actual prejudice, or that the failure to consider the claim will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. He makes no such showing. His contention that he was not aware until July 1996 that an inmate could attack a confidential informant's reliability is not enough. It is well-established in this circuit that a pro se prisoner's lack of knowledge of the law does not constitute cause. See Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy of pro se petitioner not sufficient to meet cause standard of procedural bar); see also Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (mental condition of pro se petitioner and reliance upon allegedly incompetent jailhouse lawyers did not constitute cause).
CONCLUSION
For the foregoing reasons, respondent's motion to dismiss the petition (doc # 7) is GRANTED.
Because petitioner's federal due process claim is barred from federal review by his procedural default, the court need not address respondent's argument that the claim also is time-barred under 28 U.S.C. § 2244(d).
The Clerk shall enter judgment in favor of respondent and close the file.