FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges a 2006 denial of parole. Respondent has filed a motion to dismiss petitioner's habeas application as time-barred.
Title 28 U.S.C. § 2244(d)(1) provides as follows: 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.
With respect to a denial of parole by the California Board of Prison Terms, the section 2244(d)(1) limitations period begins to run under section 2244(d)(1)(D) when the parole process is completed. See Redd v. McGrath, 343 F.3d 1077, 1081-82 (9th Cir. 2003). Petitioner had his parole hearing on January 20, 2006. Mot. To Dismiss at 2. The process was complete on May 20, 2006 when the decision to deny petitioner parole became final. Id., Ex. 1 part B at 113*fn1; 15 C.C.R. § 2041(h) (decision to deny parole to life prisoner is final within 120 days of initial hearing). Thus, for petitioner, the statute of limitations began to run on May 21, 2006, the day after the Board's decision became final, and would have ended on May 20, 2007, without the application of any tolling.
Section 2244(d)(2) of AEDPA provides that "the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). In Carey v. Saffold, 536 U.S. 214 (2002), the Supreme Court found that habeas petitioners are generally entitled to tolling of the limitations period under 28 U.S.C. § 2244(d)(2) for the period of time after which a habeas petition is denied at a lower court until a subsequent filing at a higher court, to the extent petitioner seeks higher court review of the lower court's decision. Carey, 536 U.S. at 221-25; see also Evans v. Chavis, 546 U.S. 189, 201 (2006) (addressing reasonableness of gap periods of tolling).
Petitioner filed an application for writ of habeas corpus in Sacramento County Superior Court on April 19, 2007. Mot. To Dismiss, Ex. 1 part A at 48.*fn2 The petition was denied on July 26, 2007. Id., Ex. 2 at 2-3. Next, petitioner filed a petition in the California Court of Appeal on September 2, 2007. Id., Ex. 3 part A at 52. The Court of Appeal denied the petition on September 13, 2007. Id., Ex. 4 at 2. Petitioner filed his final state habeas petition in the Supreme Court of California on October 23, 2007. Id., Ex. 5 part A at 49. That petition was denied on April 23, 2008. Pet. at 3. Respondent does not dispute that petitioner is entitled to tolling of the limitations period from the time his initial state habeas petition was filed on April 17, 2007, until the date his last petition was denied on April 23, 2008.
Considering the above, the court finds that the limitations period ran between May 21, 2006, the day after the parole denial became final, and April 18, 2007 for a total of 333 days. The period began to run again on April 24, 2008 and then ran out on May 25, 2008. Because this action was not commenced until June 15, 2008, Pet. at 50, this action is time-barred unless saved by equitable tolling.
"Equitable tolling" of the limitations period is appropriate when extraordinary circumstances beyond a habeas petitioner's control make it impossible for him to file on time. See, e.g., Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). A petitioner seeking equitable tolling must establish "(1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408 (2005).
Petitioner asserts he delayed in bringing this action because he was waiting for the United States Supreme Court to decide Cunningham v. California,127 S.Ct. 857 (2007) and the Ninth Circuit to decide Irons v. Carey, 506 F.3d 951 (9th Cir. 2007), two cases petitioner thought might impact his claims. Opp'n at 1. Nothing suggests, however, it was impossible for petitioner to bring his claims while the two cases were pending. For example, it appears petitioner could have filed in the California Superior Court and then requested a stay pending the outcome of Cunningham and Irons.
Petitioner also claims he is entitled to equitable tolling of the limitations period between March 4, 2008, when his "jailhouse lawyer" was admitted to the hospital, and June 15, 2008 when this action was filed. Opp'n at 8. Petitioner claims that while his jailhouse lawyer was recovering from back surgery for "a number of weeks," he could ...