Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a life sentence with possibility of parole, and challenges a determination by the California Board of Parole Hearings (PBH) that he was unsuitable for parole. Respondents moved to dismiss, on the ground that this action is barred by the statute of limitations. After carefully considering the record, the court grants respondents' motion.*fn1
Petitioner has also moved for a stay of this case, pending resolution of a state court decision that would affect the merits of the instant petition. Because the court determines that the petition is untimely, the request for a stay is denied.
Petitioner challenges the 2005 decision by the BPH that he was unsuitable for parole. The substance of his challenge is not at issue in the present motion. Respondent has moved to dismiss the petition on the ground that it was not filed within the limitations period for habeas petitions provided by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See 28 U.S.C. § 2244(d)(1). Accordingly, the relevant issues are (1) when the limitations period began to run, (2) whether, and for how long, petitioner may claim statutory tolling, and (3) whether, and for how long, petitioner may claim equitable tolling.
A. Commencement of the AEDPA Limitations Period
First, the court must determine whether the limitations period begins when the BPH issues a proposed decision after the suitability hearing, 120 days later when the BPH decision becomes "final," or 30 days after that, when the Governor's time to review the decision has expired.
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 Ninth Circuit has determined that the one-year period of limitations set forth in 28 U.S.C. § 2244 "applies to all habeas petitions filed by persons in 'custody pursuant to the judgment of a State court,' even if the petition challenges an administrative decision rather than a state court judgment." Shelby v. Bartlett, 391 F.3d 1061, 1062 (9th Cir. 2004) (citation omitted). See also Redd v. McGrath, 343 F.3d 1077, 1080-83 (9th Cir. 2003) (assuming without deciding that the AEDPA statute of limitations applies to collateral attacks on Parole Board decisions).
The Ninth Circuit has held that in the context of a habeas petition challenging a parole suitability determination, the applicable provision is section 2244(d)(1)(D), i.e., the date on which the factual predicate of the claim or claims could have been discovered. Shelby, 391 F.3d at 1066, Redd, 343 F.3d at 1081-83. Redd explicitly rejected application of section 2244(d)(1)(A) to this context, stating that for purposes of that provision, "judgment" ...