The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS [DOC. NO. 11]
Petitioner J.D. MARTIN ("Petitioner" or "Martin") has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254*fn1 ("Petition"). (Doc. No. 1.) Petitioner does not challenge his second degree murder conviction.*fn2 Instead, Petitioner alleges that the California Board of Prison Terms' failure to set a parole date, as well as the District Attorney's continued opposition to his parole release, violated the terms of his plea agreement and his federal and state constitutional rights. The Honorable Magistrate Judge Barbara L. Major issued a Report and Recommendation ("Report), finding the Petition time barred under the one year limitations period prescribed by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Judge Major also found that Martin was not entitled to statutory tolling, nor was equitable tolling warranted. Judge Major further determined that Petitioner failed to exhaust his state court remedies. Martin objects to Judge Major's findings.
The Court's role in reviewing the Report is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the Court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." Id. See also, U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), cert. denied, 540 U.S. 900 (2003) ("The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise . . . Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct."). Notwithstanding, the Court has made de novo review of the entire Report, and agrees with Judge Major's reasoning and conclusions as set forth in the Report. See 28 U.S.C. § 636(b). For the reasons that follow, the Court ADOPTS the Report in full. Accordingly, Martin's Petition is DENIED as untimely, as well as for failure to exhaust the available state remedies. The Clerk shall close the file.
The facts are not contested and fully set forth in the Report. On December 14, 1994, the Board held Petitioner's first parole consideration hearing and found him unsuitable for parole. Subsequent hearings were held on January 8, 1997; July 31, 2000; July 28, 2003;*fn3 and February 2, 2006. Petitioner was denied parole after each proceeding. On or about October 29, 2004, Petitioner filed a petition for writ of habeas corpus in the California Superior Court, alleging that because he had served "the sentence specified by the matrix," the District Attorney's repeated opposition to his release on parole violated his due process rights. The California Superior Court denied the petition on December 22, 2004. Petitioner then raised this same claim in a habeas petition filed in the California Court of Appeal. The appellate court denied the petition in a brief but reasoned opinion on April 5, 2005.
Approximately two months later, Petitioner sought review of the appellate court's denial in the California Supreme Court. The California Supreme Court denied the petition on February 8, 2006.
Martin filed the instant Petition in 2006. "Because [Martin's Petition] was filed after AEDPA's effective date, on April 24, 1996, the provisions of that Act apply to this case." Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001), cert. denied, 534 U.S. 978 (2001). AEDPA imposes a one-year statute of limitations on petitions for writ of habeas corpus filed by state prisoners.*fn4 28 U.S.C. § 2244(d) (West Supp. 2006).
Where, as here, a habeas petitioner challenges an administrative decision such as the denial of parole or the revocation of good time credits, section 2244(d)(1)(D) applies. See Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004). Under that subsection, the limitations period begins to run on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D); see also Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (explaining that under § 2244(d)(1)(D), the limitations period begins to run when a "prisoner knows (or through diligence could discover) the important facts [on which his claims rely], not when [he] recognizes their legal significance").
As Judge Major noted, Petitioner's habeas claims are not limited to his most recent parole denial, but instead are broad challenges to the Board's failure to set a parole release date and the District Attorney's opposition to parole. Under section 2244(d)(1)(D), Petitioner was, or with the exercise of reasonable diligence, aware of the factual predicate of his federal habeas claims by July 28, 2003, at the very latest.*fn5 July 28, 2003, was the first date the Board refused his parole release after having served fifteen years. Petitioner failed to pursue federal habeas relief until three years later. He filed the instant petition on April 27, 2006. (Doc. No. 1.)
A petition can be timely, even if filed after the one-year time period has expired, when statutory tolling applies. Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir. 2002). AEDPA's one-year statute of limitation is statutorily tolled during the time a properly filed application for State post-conviction or other collateral review is pending. Delhomme v. Ramirez, 340 F.3d 817, 819 (9th Cir. 2003). Under California's post- conviction procedure, this means the statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000). But there is no tolling from the time a final decision is issued on direct state appeal and the time the first state collateral challenge is filed because there is no case pending during that interval. Id. Similarly, "a petitioner is not entitled to tolling during the gap between the completion of one full round of state collateral review and the commencement of another." Delhomme, 340 F.3d at
The latest possible date the statute of limitations began to run under 28 U.S.C. § 2244(d)(1)(D) was July 29, 2003. Although Petitioner filed multiple collateral challenges to the Board's parole denials, the first challenge was not filed until October 29, 2004; and as such, those petitions did not operate to toll the statute of limitations. Because the one-year limitations period had already expired by that date, the collateral challenges had no tolling effect. See Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (habeas petition is not entitled to tolling where the limitations period has already run).
Petitioner also fails to show that equitable tolling is warranted. "[T] he threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002), cert. denied, 537 U.S. 1003 (2002). Martin "bears the burden of showing that this extraordinary exclusion should apply to him." Id. at 1065. Here, Petitioner provides no argument in support of equitable tolling nor does he allege facts suggesting that he has been pursuing his rights diligently, or that any extraordinary circumstance prevented him from seeking habeas relief in a timely manner. Since Petitioner fails to carry his burden with regard to equitable tolling, and because this Court fails to identify anything in the record to suggest that such tolling is warranted, this Court finds no basis on which to afford Petitioner that benefit.
In conclusion, the Court finds that the instant Petition was filed after the expiration of the applicable statute of limitations. Moreover, the Court finds that Petitioner is not entitled to the benefit of statutory or equitable tolling. As a result, the Court finds that the claims presented in the instant Petition are barred by AEDPA's statute of ...