Opinion

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

SUSAN MAE POLK, Case No. 5:23-cv-2659-MEMF (SK)

Petitioner, ORDER ACCEPTING REPORT

v. AND RECOMMENDATION TO

DISMISS HABEAS PETITION

M. HILL,

Respondent.

In accordance with 28 U.S.C. § 636, the Court has reviewed the filed

Report and Recommendation (R&R or Report) to Dismiss Habeas Petition

as Untimely, Petitioner’s Objections, Respondent’s Reply to the Objections,

and any pertinent records as needed. The Court has reviewed de novo those

identifiable portions of the R&R to which Petitioner has timely and properly

objected. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b); United States

v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

In doing so, the Court has declined to consider any arguments raised

for the first time only in the objections. See United States v. Howell, 231

F.3d 615, 621-23 (9th Cir. 2000).

The Report recommends the dismissal of the Petition, which

challenges adverse parole-related decisions, for untimeliness and failure to

raise a cognizable federal claim. (ECF No. 58.) Petitioner’s Objections to the

Report (ECF No. 65 ) do not merit any change to the Report’s findings or

recommendations.

Petitioner objects that her challenge to her 2019 parole denial is timely

because she raised a timely challenge to the separate denial of an elderly

parole hearing. (ECF No. 65 at 8-9.) On the contrary, the limitations

starting date in “[28 U.S.C.] § 2244(d)(1) “applies to each claim in a habeas

application on an individual basis.” Mardesich v. Cate, 668 F.3d 1164, 1171

(9th Cir. 2012). The starting date for Petitioner’s challenge to her 2019

parole denial was in September 2019 (ECF No. 58 at 7), long before she

separately was denied an elderly parole hearing in October 2022 (id. at 4).

Petitioner’s reliance on Campbell v. Henry, 614 F.3d 1056, 1062 (9th Cir.

2010), to argue for an opposite conclusion, is misplaced. (ECF No. 65 at 8.)

The Ninth Circuit held in Campbell that, under 28 U..C. § 2244(d)(2), “the

one timely claim in [Petitioner’s] state habeas petition was sufficient to toll

the AEDPA statute of limitations with regard to any and all claims in her

federal petition.” 614 F.3d at 1062. The question in this action, however, is

the limitations starting date for each individual claim under § 2244(d)(1),

not the extent of statutory tolling available under § 2244(d)(2). See Fielder

v. Varner, 379 F.3d 113, 121 (3d Cir. 2004) (Alito, J.) (statutory tolling for

all the claims in a federal petition under § 2244(d)(2) “obviously does not

require us” to adopt the same reasoning for when the statute of limitations

begins to run under § 2244(d)(1)); see also Mardesich, 668 F.3d at 1171

(“We are persuaded by the reasoning in Fielder[.]”).

Petitioner objects to the Report’s calculation of her limitations starting

date for her challenge to the 2019 parole denial as May 30, 2019. (ECF No.

65 at 9-10.) On the contrary, the Report properly calculated the limitations

starting date as September 2019, or 120 days after the parole suitability

hearing in May 2019. (ECF No. 58 at 7.)

Petitioner objects that she is entitled to statutory tolling from her

petition for resentencing. (ECF No. 65 at 10-13.) The objection is misplaced

because it improperly relies on Campbell, which does not help Petitioner in

demonstrating the limitations starting date for separate parole-based claims

under § 2244(d)(1).

Petitioner objects that the Report improperly relied on Mardesich,

which allegedly is an “outlier circuit holding.” (ECF No. 65 at 14-19.) On

the contrary, the holding in Mardesich that the limitations starting date

must be analyzed on a claim-by-claim basis is in accord with the other

circuits. “Every federal appellate court to consider this question has

concluded that the timeliness of claims raised in a petition for habeas corpus

must be analyzed on a claim-by-claim basis.” Clemente v. Lee, 72 F.4th 466,

471 (2d Cir. 2023).

Petitioner objects that the Report relied on a Superior Court finding

that was not entitled to deference and that she is entitled to immediate

release from prison. (ECF No. 65 at 19-27.) The finding allegedly was that

Petitioner was “uncooperative,” “disruptive” and/or “non-response” during

her parole hearing. (Id. at 19.) The Report, however, did not rely on any

such findings to conclude that Petitioner’s claims were untimely or not

cognizable. (ECF No. 58.) The Report says nothing about the merits of

Petitioner’s parole claims. (Id.)

Petitioner objects that her challenge to the denial of an elderly parole

hearing lies at the core of federal habeas corpus. (ECF No. 65 at 27-30.) The

Court agrees with the Report that the claim does not sound in habeas

because relief would not “necessarily lead to [her] immediate or speedier

release from confinement.” (ECF No. 58 at 11.) Because Petitioner seeks “at

most new eligibility review, which at most will speed consideration of a new

parole application[,]” her claim does not lie at “the core of habeas corpus.”

Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (emphasis in original).

Petitioner objects that the Report relied on an arbitrary state court

ruling regarding the refusal to grant her an elderly parole hearing. (ECF No.

65 at 30-32.) The California Court of Appeal ruled that, under state law,

Petitioner was not entitled to a separate elderly parole hearing because she

earlier had received an initial parole hearing based on her minimum eligible

parole date. (ECF No. 1-7 at 18.) The Court agrees with the Report that the

Parole Board’s refusal to grant her a separate elderly parole hearing presents

merely an issue of state law that is not cognizable on federal habeas review.

(ECF No. 58 (citing Whitfield v. Vaughn, 272 F. App’x 591, 592 (9th Cir.

2008) (federal habeas relief cannot be granted based on the Parole Board’s

alleged failure to set a parole hearing within the time frame mandated by

California law).)

Concluding that nothing in Petitioner’s objections affects the material

findings and conclusions in the R&R, the Court accepts the recommendation

and orders that the petition under 28 U.S.C. § 2254 be DISMISSED as

untimely. Judgment dismissing this action with prejudice will be entered

accordingly.

IT IS SO ORDERED. af ———

DATED: March 5, 2026

MAAME EWUSI-MENSAH FRIMPONG

United States District Judge