The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED, OVERRULING OBJECTIONS AND DISMISSING PETITION AS UNTIMELY
Petitioner Bruce Allen, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). In 1983, after his conviction on two counts of first degree murder and one count of attempted murder, Petitioner was sentenced to life without the possibility of parole. He claims his constitutional rights were violated when a California state regulation providing for a commutation review hearing, 15 Cal. Code Regs. § 2817, was repealed. He claims that the repeal as applied to his case constituted an ex post law. The case was referred to United States Magistrate Judge Cathy Ann Bencivengo for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d).
Respondent filed a motion to dismiss the Petition as time-barred under 28 U.S.C. § 2244(d). Petitioner opposed the motion. The Magistrate Judge issued a Report and Recommendation recommending the Petition be denied. Petitioner timely filed objections. Respondent did not file a response.
In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc) (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review). Petitioner objects to the Report and Recommendation in all respects.
Petitioner objects to the conclusion that 28 U.S.C. § 2244(d)(1) sets forth the applicable statute of limitations because he is not challenging his conviction in State court or a specific Board decision. The statute applies to all petitions filed by a person in custody pursuant to the judgment of a State court, 28 U.S.C. § 2244(d)(1), Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004) (applicable to administrative decisions), after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001); see also Hasan v. Galaza, 254 F.3d 1150, 1153 (9th Cir. 2001). Accordingly, the objection is overruled.
"In furtherance of Congress's desire to accelerate the federal habeas process, AEDPA imposed a one-year statute of limitations on the filing of a federal habeas corpus petition by a state prisoner." Nino v. Galaza, 183 F.3d 1003, 1004-05 (9th Cir. 1999) (internal quotation marks and citation omitted); 28 U.S.C. § 2244(d)(1). For prisoners whose convictions became final before AEDPA's enactment, the statute expired on April 24, 1997. Patterson, 251 F.3d
As pertinent here, under section 2244(d)(1), the statute runs . . . from the latest of -- . . .
(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; . . .
(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 time line of pertinent facts is as follows:
In 1983 Petitioner received a State court sentence of life imprisonment without the possibility of parole ("LWOP"). At that time, California regulations required the Board of Prison Terms ("Board") to consider any LWOP prisoner with no more than one felony conviction for referral to the Governor for commutation of sentence or pardon. 15 Cal. Code Regs. § 2817 (repealed 1993). The law required the Board to consider such applications twelve years after the prisoner was received and every three years thereafter. Id. Petitioner claims he was first eligible for consideration on February 22, 1995. However, effective January 19, 1994 the law was repealed, and he did not receive a commutation review hearing.
Petitioner asserts that the Board never provided him with actual notice of its refusal to hear his case. Until 2004, the Board did not allow administrative appeals of refusals to schedule a hearing. (Decl. of Bruce Allen, filed Sept. 15, 2008 ("Decl."), at 1.) All of Petitioner's attempts to appeal the Board's refusal to schedule a commutation review hearing were rejected and returned without a response. He claims that the only notice he received was when his Correctional Counselor refused to prepare his case for Board review. (Pet'r Opp'n to Mot. to Dismiss, filed Sept. 15, 2008 ("Opp'n") at 8.)
On May 11, 2004 the California Department of Corrections issued a memorandum stating that effective May 1, 2004, the Board would no longer process inmate appeals of discretionary Board decisions, and that such appeals would have to be filed directly with the courts. (Decl. at 1 & Pet. Ex. G.) The memorandum directed all institutions to post notices "so as to be readily available to inmates." (Pet. Ex. G.) The prison staff at Corcoran, where Petitioner was incarcerated, did not post the notice at the prison library or Petitioner's housing unit. (Decl. at 1.) He was unaware of the change in the appeals procedure until he was transferred to Calipatria State Prison in December 2005, where the notice was properly posted. (Id.)
Nevertheless, Petitioner was apparently aware of his claimed right to a commutation review hearing in 1995 and the fact that the regulation granting him the right to the hearing had been repealed. (See Opp'n at 14 and discussion below.) However, he did not file a petition. Instead, "on numerous occasions over the course of several years" he attempted to obtain a copy of the repealed section 2817 at the Corcoran State Prison and Calipatria State Prison libraries, but was informed that they did not ...