FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This action proceeds on the July 18, 2008, petition in which petitioner challenges a finding that he was not suitable for parole. Respondents move to dismiss this action upon the ground it is untimely. For the reasons explained below, the court finds that the petition is late and respondent's motion to dismiss must be granted.
Petitioner is serving a sentence of 25 years to life for his 1984 conviction of murder. On April 14, 2005, a panel of the Board of Prison Terms ("BPT) found that he was not suitable for release to parole. Pet., Ex. A. Petitioner filed an application for habeas relief in the trial court on July 10, 2006, and that court denied relief. Id. He then sought habeas relief in the appellate court, which also denied relief. Id. Thus, petitioner sought relief from the California Supreme Court. On May 9, 2007, that court denied relief. On July 6, 2007, petitioner filed*fn1 the application pending in this action.
II. Statute of Limitations
A one-year limitation period for seeking federal habeas relief begins to run from the latest of the date the judgment became final on direct review, the date on which a state-created impediment to filing is removed, the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review or the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). This period is tolled while a "properly filed" application for state post-conviction relief is "pending" in the state court. 28 U.S.C. § 2244(d)(2). In California, a properly filed post conviction application is "pending" during reasonable intervals between a lower court decision and filing a new petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002). Federal courts apply equitable tolling in habeas actions. A court will equitably toll the limitations period only where "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Calderon v. United States District Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998)(en banc) cert. denied, 526 U.S. 1060 (1999)(quotations and citation omitted). In other words, "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Petitioner has the burden of establishing the existence of such circumstances. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
Respondent contends that the petition is late regardless of whether petitioner is entitled to statutory tolling. Petitioner's only argument is that if the court were to examine the record closely, it would find that the petition is timely. Petr's Opp'n, at 1-2. The threshold and crucial question here is when the limitation period began to run. For a challenge to a decision finding a prisoner unsuitable for parole, the limitation period begins to run the date the factual predicate for the claims could have been discovered. Redd v. McGrath, 343 F.3d 1077, 1083 (9th Cir. 2003). Courts ordinarily deem the factual predicate to have been discovered the day the decision becomes final, i.e., 120 days after the BPT finds a petitioner not suitable for parole. See Nelson v. Clark, No. 1:08-cv-00114, 2008 U.S. Dist. LEXIS 48682, at *7-9, 2008 WL 2509509 (E.D. Cal. June 23, 2008). Thus, petitioner is deemed to have been aware of the factual predicate for his claims August 12, 2005, and the limitation period began to run the following day. Under this analysis, petitioner had until August 14, 2006,*fn2 to file a federal habeas petition. Absent tolling, the July 18, 2007, petition is nearly one year late.
As noted above, petitioner sought state habeas corpus relief. He filed his first petition 332 days after the BPT decision became final, i.e., July10, 2006. Respondent does not challenge petitioner's entitlement to statutory tolling. Thus, petitioner had to file his federal habeas petition no later than 33 days after May 9, 2007, the date the California Supreme Court denied habeas relief. Accordingly, petitioner had to file in this court no later than June 11, 2007. However, he did not file until July 18, 2007. As respondent notes, the petition is 37 days late. Respondent's motion must be granted.
Assuming that petitioner is entitled to statutory tolling for the time he sought habeas relief in the California courts, his habeas petition is still 37 days late. Petitioner does not assert any entitlement to equitable tolling. Thus, the court finds that the petition is late. Respondent's motion must be granted and this action must be dismissed.
Accordingly, it is hereby RECOMMENDED that:
1. Respondent's May 7, 2008, motion to dismiss this action as untimely be granted; and,
2. This action be dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal ...