The opinion of the court was delivered by: Ronald M. Whyte United States District Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (Docket No. 4)
Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming that the Board of Prison Terms ("Board") should have released him from prison in 1993. The court ordered respondent to show cause why the petition should not be granted. Respondent filed a motion to dismiss the petition and petitioner filed an opposition.*fn1
Based upon the papers submitted, the court concludes that the petition is untimely and will DISMISS the instant petition pursuant to 28 U.S.C. § 2244(d)(1).
Petitioner was sentenced to a term of seven years-to-life in state prison after his 1977 conviction in Solano Superior Court for first degree murder (Cal. Penal Code § 187). Petitioner does not challenge his original sentence or conviction in the instant petition. Rather, petitioner claims that his sentence expired in 1993 under California's Indeterminate Sentencing Law ("ISL"), but that the Board has not released him from prison. Petitioner filed two unsuccessful habeas petitions in the state superior court in 2005 and 2006. Petitioner then filed a habeas petition with the state appellate court, which was denied. Thereafter, petitioner filed a petition in the state supreme court which was denied on May 10, 2006. Petitioner filed the instant petition on August 14, 2006 in the United States District Court for the Eastern District of California. The petition was transferred to this court on November 8, 2006.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became law on April 24, 1996 and imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. See 28 U.S.C. § 2244(d)(1). AEDPA's one-year limitation period applies to all habeas petitions filed by state prisoners, even if the petition challenges a decision by an administrative board such as a parole board. Shelby v. Bartlett, 391 F.3d 1061, 1062-63 (9th Cir. 2004).
Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (A) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (B) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (C) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (D) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Where, as here, the petition challenges an administrative action by a parole board, 28 U.S.C. § 2244(d)(1)(D) applies, and 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." Shelby, 391 F.3d at 1066. Here, petitioner claims that under California's ISL, his release date was set in 1993, and that the Board violated his constitutional rights by failing to release him at that time. Petitioner asserts that his continued incarceration beyond this ISL term is an ongoing violation of his constitutional rights. Pet.'s Opp. at 3. The factual predicate for this claim is that the Board rescinded petitioner's parole date in 1992 and did not release him from custody when his ISL term expired in 1993, a fact of which petitioner was certainly aware of at that time. Petitioner argues that he did not know that his detention was illegal at that time, and that this delay was due to ineffective assistance of counsel and the Board's scheduling practices for parole suitability hearings. Pet.'s Opp. at 5-6; Petition at 15-16.
However, under 28 U.S.C. § 2244(d)(1)(D) the limitations period begins to run "'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. 2000). Petitioner asserts that his continued incarceration is an ongoing constitutional violation and therefore the petition is timely. He asserts further that his claim is not about the failure to grant parole but rather about the failure to release him because he has fully-served his sentence.
However, as the state superior court recognized, petitioner's term of incarceration does not exceed his original sentence, seven years-to-life, nor demonstrate that the time he has actually served is constitutionally disproportionate to his crime of first degree murder. Petition, Attachment (In re Application of Lemonta McBroom, Order on Petition for Writ of Habeas Corpus, Solano County Superior Court, case no. FCR227749, December 14, 2005) at 2. Here, the parole board rescinded petitioner's originally set release date and has not since found him suitable for parole. Based upon petitioner's contentions, the unlawful portion of his sentence began in 1993, when his ISL term allegedly expired and the Board failed to release him. As the factual predicate of petitioner's claim could have been discovered with the exercise of due diligence in 1993, when his ISL term expired, that is when the limitation period commenced under 28 U.S.C. § 2244(d)(1)(D).
Where, as here, the limitation period began to run prior to the enactment of AEDPA, petitioner had until April 24, 1997 in which to file his federal habeas petition. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). The instant petition was not filed until 2006, approximately nine years later. Thus, absent tolling, the instant petition is untimely.
The one-year statute of limitations is tolled under § 2244(d)(2) for the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). Petitioner's first state habeas petition was not filed until 2005, long after the limitations period had expired in 1997. A state habeas petition filed after AEDPA's statute of limitations ended cannot toll the limitations period. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed," even if the state petition was timely filed). Therefore, there is no basis for statutory tolling in this case.
Because statutory tolling does not render the petition timely, the court must decide whether equitable tolling saves the petition. The Supreme Court has "never squarely addressed the question whether equitable tolling is applicable to AEDPA's statute of limitations," Pace v. DiGuglielmo, 544 U.S. 408, 418 n.8 (2005), but Ninth Circuit authority holds that the one-year limitation period may be equitably tolled because § 2244(d) is a statute of limitations and not a jurisdictional bar. Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), cert. denied, 523 U.S. 1, and cert. denied, 523 U.S. 1061 (1998), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060 (1999). Equitable tolling will not be available in most cases because extensions of time should be granted only if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Id. (citation and internal quotation marks omitted).
The Ninth Circuit has held that the petitioner bears the burden of showing that this "extraordinary exclusion" should apply to him. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). The petitioner must ...