FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the Board of Parole Hearings' February 25, 2003 decision to deny him parole. On October 17, 2008, the undersigned ordered respondent to file and serve a response to the petition. On January 20, 2009, respondent filed the pending motion to dismiss, arguing that petitioner's amended petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and that petitioner also failed to exhaust his state judicial remedies. Petitioner has not filed an opposition to the motion.*fn1
On February 25, 2003, the Board of Parole Hearings ("Board") found petitioner unsuitable for parole. (Am. Pet., Ex. A.) On July 17, 2005, petitioner filed a petition for writ of habeas corpus in the California Supreme Court challenging the Board's decision. (Resp't's Ex. 1.) On April 19, 2006, the California Supreme Court denied that petition. (Id.) On May 16, 2006, petitioner and thirty-one of his fellow inmates filed a petition for writ of habeas corpus in this court seeking relief on the grounds that the Board of Parole Hearings had denied them due process in connection with their parole hearings. Pursuant to court order, on or about December 22, 2006, petitioner filed the instant amended petition for writ of habeas corpus, challenging the Board of Parole Hearings' February 25, 2003, decision to deny him parole.
RESPONDENT'S MOTION TO DISMISS
Respondent has filed a motion to dismiss arguing that petitioner's federal habeas petition is time-barred. Specifically, respondent argues that on February 25, 2003, the Board of Parole Hearings found petitioner unsuitable for parole. According to respondent, petitioner became aware of the factual predicate for his claims, and the statute of limitations began to run, on that same date. (Resp't's Mot. to Dismiss at 3-4.)
Respondent argues that petitioner's petition for writ of habeas corpus to the California Supreme Court would ordinarily toll the statute of limitations but that petitioner did not file his petition in that court until after the statute of limitations for filing a federal petition had expired. Accordingly, respondent concludes that petitioner is not entitled to statutory tolling and that his federal habeas petition is untimely by several years. (Resp't's Mot. to Dismiss at 4.)
Respondent also argues that petitioner failed to exhaust state judicial remedies as to the claims presented in his amended federal petition. Specifically, respondent argues that the California Supreme Court denied petitioner's claims, citing the decision in People v. Duvall, 9 Cal. 4th 464, 474 (1995). According to respondent where, as here, the California Supreme Court's habeas denial indicates the petition was procedurally deficient, the petitioner has failed to exhaust his state judicial remedies. (Resp't's Mot. to Dismiss at 5-7.)
I. The AEDPA Statute of Limitations
On April 24, 1996, Congress enacted AEDPA which amended 28 U.S.C. § 2244 by adding the following provision:
(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 ...