The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER AND 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. Petitioner challenges a 2006 prison disciplinary conviction for conspiracy to murder peace officers in violation of Cal. Code Regs. tit. 15, § 3005(c).
This action is proceeding on the original petition filed October 1, 2008, raising the following claims: 1) inadequate notice of the charges; 2) insufficient evidence to support the charges; 3) denial of right to impartial classification committee.
Pending before the court is respondent's motion to dismiss on grounds that this action is barred by the statute of limitations. After carefully reviewing 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.
Where, as here, the petition contests an adverse administrative decision of a prison disciplinary proceeding rather than a state court judgment, § 2244's one-year limitation period still applies and the date the statute of limitations begins to run is determined under subparagraph (D) of § 2244(d)(1), i.e., it is the date when the factual predicate of the claim could have been discovered through the exercise of due diligence, and in prison disciplinary cases that usually will be the date the administrative decision becomes final. See Shelby v. Bartlett, 391 F.3d 1061, 1063-66 (9th Cir.2004); see also Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir.2003) Subparagraph (A) of § 2244(d)(1) does not apply in prison disciplinary proceedings cases because the decision constitutes an administrative ruling, not a state court judgment. Redd, 343 F.3d at 1081-82.
In the instant case, the statute of limitations ran from July 13, 2006, i.e. the date the Director's Level Appeal decision was issued denying petitioner's administrative appeal. See Petition, attached exhibits, p. 41 of 42.*fn1 Petitioner had one year from that date to file a timely federal petition.
In his opposition to the pending motion, filed February 9, 2009, petitioner argues that he filed a second administrative grievance which was exhausted on September 27, 2006. Attached to the opposition as Exhibit A is a copy of the second grievance filed at the first level of review on June 22, 2006. In this grievance, petitioner contends that his investigative employee, Officer Marsh, predetermined his guilt. Petitioner contends that Officer Marsh demonstrated this bias when he reviewed and signed 4 disclosure forms and issued two different crime reports which enabled him to falsify 80 answers to 105 questions addressed to witnesses. Also attached to the opposition as an exhibit is a letter dated September 27, 2006, to petitioner from the Chief of Inmate Appeals returning this appeal because petitioner failed to complete the second level of review. Also attached as exhibits are interview requests forms in which petitioner complains that prison officials at High Desert State Prison failed to process his second grievance.
By filing a second round of administrative grievances, petitioner did not upset the finality of the first grievance. To find otherwise would mean that the statute of limitations could run indefinitely for prison disciplinary convictions if prisoners filed serial administrative grievances. Moreover, this court observes that petitioner's first administrative grievance raised the claims against Officer Marsh that are raised in the second grievance. See exhibits ...