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Willis v. Kane

January 23, 2009

COREY D. WILLIS, PETITIONER,
v.
A.P. KANE, ET AL., RESPONDENTS.



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

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the original petition filed October 7, 2008. Petitioner challenges the 2005 decision of the California Board of Parole Hearings (BPH) finding him unsuitable for parole.

Pending before the court is respondent's December 12, 2008, motion to dismiss on grounds that this action is barred by the statute of limitations. After carefully considering the record, the court recommends that respondent's motion be granted.

The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1):

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 statute of limitations for habeas petitions challenging parole suitability hearings is based on § 2244(d)(1)(D), i.e. the date on which the factual predicate of the claim or claims could have been discovered through the exercise of due diligence. Redd v. McGrath, 343 F.3d 1077 (9th Cir. 2003). At the time the Ninth Circuit decided Redd, suitability decisions could be administratively appealed. Id. at 1084. In Redd, the Ninth Circuit held that the factual basis of the petitioner's claims challenging a parole suitability hearing could have been discovered through the exercise of due diligence when the BPH denied the administrative appeal. Id.

Since Redd, the administrative review process for parole suitability hearings has been eliminated. Therefore, petitioner's suitability hearing became final when the 2005 BPH became final on November 30, 2005. See Transcript from 2005 BPH hearing attached as exhibit to the petition, p. 54 of the transcript.*fn1 Petitioner had one year from that date to file a timely federal petition. The instant action, filed October 7, 2008, is not timely unless petitioner is entitled to statutory or equitable tolling.

AEDPA's one-year limitation period may be tolled for "[t]he 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). An application is "pending" until it has achieved final resolution through the state's post-conviction procedures. Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134 (2002). In Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), the Ninth Circuit held that 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."

Pursuant to the mailbox rule, petitioner filed his first state habeas petition challenging the 2005 BPH decision on May 4, 2006. Motion to Dismiss, Exhibit 1. On May 29, 2007, the Superior Court denied the petition. Id., Exhibit 2. Pursuant to the mailbox rule, petitioner filed a habeas corpus petition in the California Court of Appeal on July 11, 2007. Motion to Dismiss, Exhibit 3. On October 2, 2007, the California Court of Appeal denied the petition. Id., Exhibit 4.

On October 24, 2007, petitioner filed a habeas petition in the California Supreme Court. Id., Exhibit 5. On December 12, 2007, the California Supreme ...


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