FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court on respondents' motion to dismiss this action as barred by the one year statute of limitations, see 28 U.S.C. § 2244(d), and because petitioner failed to exhaust administrative remedies.
Section 2244(d)(1) of Title 28 of the United States Code provides: A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) 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). Section 2244(d)(2) provides that "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 shall not be counted toward" the limitations period. 28 U.S.C. § 2244(d)(2).
For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:
1. On August 14, 2005, petitioner was issued a CDC-115 rules violation report alleging a correctional officer smelled the strong odor of alcohol coming from petitioner's cell. (Motion, Ex. A.) Petitioner was found guilty of possessing inmate-manufactured alcohol at a disciplinary hearing held on August 25, 2005*fn1 and was assessed 120 credits. (Motion, Ex. A.)
2. Petitioner filed a petition for writ of habeas corpus*fn2 in the Sacramento County Superior Court claiming that Officer Feryance did not give him a copy of the disciplinary decision until February 22, 2006, at which time he attempted to file an administrative appeal of the decision, only to have it screened out as untimely. (Opp'n, Ex. A. [docket no. 13 at 18].) That petition was denied on July 7, 2006 based on a finding that there was some evidence to support the institution's conclusion that Feryance had given petitioner a copy of the decision on September 4, 2005. (Id.) Moreover, the court found petitioner failed to show he made any attempt, within a reasonable time period after the August 25, 2005 hearing, to obtain a copy of the CDC-115 document. The court stated petitioner should have begun his efforts to obtain a copy of the decision closer to the August 25, 2005 hearing date, rather than waiting for months. (Id.)
3. On December 16, 2006, petitioner submitted a CDC-602 administrative appeal, claiming no more than 30 days could be assessed for the violation, and arguing he could not be found guilty without laboratory testing of the alcohol. (Motion, Ex. A.) The CDC-602 administrative appeal was dismissed on July 30, 2007 as untimely. (Motion, Ex. A.)
4. Petitioner first challenged the disciplinary decision by filing a petition for writ of habeas corpus in the Sacramento County Superior Court on November 6, 2007 under the mailbox rule. (Motion, Ex. A.) On December 21, 2007, the Superior Court denied the petition, finding that petitioner failed to exhaust his administrative remedies and failed to state a prima facie claim for relief. (Petition at 22.)
5. Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District, in Case No. C057826, and on January 17, 2008, the petition was denied. (Petition at 20.)
6. Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, Case No. S160741. (Petition at 19.) The petition was denied citing See In re Dexter (1979) 25 ...