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Cook v. Subia

January 21, 2009

LARRY E. COOK, PETITIONER,
v.
RICH SUBIA, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Introduction

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, convicted of second degree murder in 1981, and sentenced to a term of 17 years to life, challenges the Board of Parole Hearings (BPH) decision on November 28, 2005, finding petitioner unsuitable for parole. Petition, p. 1. Petitioner raises the following grounds for his challenge: 1) due process violation where California regulations create a liberty interest in parole and the BPH continues to rely on unchanging factors (the commitment offense and criminal history) in denying petitioner parole; 2) biased BPH members violate petitioner's due process rights. See Petition.

Motion to Dismiss

Pending before the court is respondent's motion to dismiss the petition as barred by the one-year AEDPA statute of limitations, filed on July 24, 2008, which petitioner opposed.

Discussion

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) was enacted. AEDPA amended 28 U.S.C. § 2244(d)(1) so that it now 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.

The § 2244(d)(1)(D) limitation period for petitions that challenge administrative decisions "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 v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004), citing Redd v. McGrath, 343 F.3d 1077, 1082 (9th Cir. 2003). Under Redd, for habeas petitions challenging parole suitability hearings, the statute of limitations runs from the date the BPH denies the administrative appeal. Redd v. McGrath, 343 F.3d at 1082-1084 (9th Cir. 2003), citing 28 U.S.C. ยง 2244(d)(1)(D). The Shelby Court noted that in Redd, a challenge to a parole board's denial of an administrative appeal, it had found that the statute of limitations began running the day after petitioner received notice of the Board's decision. However, as respondent contends, since Redd, the administrative appeal/review process for parole suitability determinations has been eliminated, arguing that therefore the factual predicate of petitioner's claims became known to him on November 28, 2005, the date when petitioner appeared before the BPH for his parole consideration hearing. MTD, p. 4, Ex. G, Transcript of Nov. 28, 2005, Parole Hearing. On that day, petitioner learned of the reasons for the denial, thus triggering the running of the statute, according to respondent. MTD, pp. 4-5. Thus, under respondent's argument, 290 days of the statute had run before ...


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