The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge
ORDER ADOPTING AND MODIFYING REPORT AND RECOMMENDATION
Mark Ouellette ("Petitioner"), a state inmate represented by counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition") on November 9, 2006, challenging his Board of Parole Hearing decision. Robert J. Hernandez ("Respondent") filed a Motion to Dismiss ("Motion") on March 19, 2007, arguing the Petition is a "mixed petition" containing both exhausted and unexhausted claims. ( Doc. No. 6.) In response, Petitioner filed an Opposition to Respondent's Motion to Dismiss ("Opposition") on April 10, 2007. (Doc. No. 8.)
On September 27, 2007, Magistrate Judge William McCurine issued a Report and Recommendation ("Report") recommending that the Motion to Dismiss be denied. Respondent only objects in part to the Report's findings. Respondent concedes that "the ultimate conclusion of the Report" is correct.(See Objections at 2:1; 7:13.) But he points out that there are seven incorrect factual and legal findings in the Report. See id. at 1-2. For the reasons stated below, the Court adopts the well-reasoned Report and Recommendation of the Magistrate Judge with modifications, denies Respondent's Motion to Dismiss, and directs Respondent to file an Answer and show cause why the writ should not be granted.
A district judge "may accept, reject, or modify the recommended decision" of a Magistrate Judge on a dispositive matter. F.R.C.P. 72(b); see also 28 U.S.C. §636(b)(1). Moreover, "the court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made." Id. "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." U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), cert denied, 157 L.Ed.2d 182 (2003) (emphasis in original).
In the Report and Recommendation, the Magistrate Judge correctly considered the Petitioner's efforts to exhaust his state remedies and determined that all of the issues were exhausted. Accordingly, this Court adopts the Report and Recommendation with modifications.
On November 18, 1993, Petitioner entered a guilty plea to second-degree murder and was sentenced to a term of 15 years to life with the possibility of parole. (Lodgment 1.) Defendant was given credit for 564 days in custody. Id. Petitioner had his parole consideration hearing at the Richard J. Donovan Correctional Facility on August 10, 2005. (Petition, Ex. B at 1.) After considering Petitioner's history and parole plans, the Parole Board found Petitioner unsuitable for parole for three years. Id. at 81-82. The Parole Board decision became final on December 28, 2005. Id. at 89.
On January 4, 2006, Petitioner filed a Petition for Writ of Habeas Corpus with California Superior Court for the County of Los Angeles. (Petition, Ex. D at 1.) The California Superior Court denied the petition on July 10, 2006. Id. at 2. The California Superior Court held the Parole Board decision was not arbitrary and did not violate due process because the decision was based on "some evidence" and additional corroborating factors. Id. at 2-3.
In a summary decision, the California Court of Appeal denied the Petition for Writ of Habeas Corpus citing In re Rosenkrantz, 29 Cal. 4th 616, 667 (Cal. 2002) for the proposition that the Parole Board's denial in a parole suitability determination must be upheld if it is supported by "some evidence" in the record of the proceedings before the board. (Petition, Exhibit E.) On October 25, 2006, the Supreme Court of California declined review in a one-line order -- "Petition for review DENIED." (Petition, Exhibit F.)
The California Supreme Court denied Petitioner's Petition for Review on October 25, 2006. Judge McCurine found that the ninety-day period for filing a petition for certiorari with the United States Supreme Court ended on January 13, 2006, which started the running of the statute of limitations under 28 U.S.C. § 2244(d) for Petitioner's federal habeas petition. Therefore, absent tolling, the statute of limitations would expire on January 13, 2007.
Respondent "does not challenge the timeliness of the Petition." (See Objections at 5:7-8) However, Respondent objects on the grounds that the Report erred in its calculation of the statute of limitations. Respondent correctly points out that the Court should apply subdivision D of 28 U.S.C. § 2244(d)(1) rather than subdivision A because "subdivision D applies to habeas petitions challenging administrative decisions, including decisions of parole boards." (See Objections at 5:14-15.) Although there has been some disagreement among courts on this issue, the Ninth Circuit clarified in Redd v. McGrath, 343 F.3d 1077, 1082 (9th Cir. 2003) that the limitations period begins to run when the habeas petitioner "could have learned of the factual basis for his claim through the exercise of due diligence."
Petitioner's claim that the Parole Board's decision violated due process is subject to a one-year statute of limitations. This period began to run on December 29, 2005, the day after the Board's decision became final, and expired on December 28, ...