FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the November 19, 2003, decision by the California Board of Parole Hearings ("Board") to deny him parole. On October 8, 2008, the undersigned ordered respondent to file and serve a response to petitioner's petition. On December 4, 2008, respondent moved to dismiss, arguing that the habeas petition before the court is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has not filed an opposition to the motion.*fn1
On November 19, 2003, the Board found petitioner unsuitable for parole. (Pet., Ex. 3.) On February 10, 2004, petitioner filed a petition for writ of habeas corpus in the Amador County Superior Court challenging the Board's 2003 decision. (Resp't's Ex. A.) On October 20, 2005, that petition was denied by the court. (Resp't's Ex. A.). On June 26, 2006, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal and on July 6, 2006, that petition was denied. (Resp't's Ex. B.) Finally, on September 1, 2006, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Resp't's Ex. C.) On April 11, 2007, the California Supreme Court denied the petition. (Id.) Petitioner filed the instant federal petition on August 28, 2007.
RESPONDENT'S MOTION TO DISMISS
Respondent argues that petitioner's federal habeas petition is time-barred. Specifically, respondent argues that on February 10, 2004, petitioner filed his first state habeas petition in the Amador County Superior Court challenging the Board's decision. He was therefore aware of the factual predicate of his claims, and the statute of limitations began to run, no later than that same date. (Resp't's Mot. to Dismiss at 2-4.)
Respondent does not dispute that petitioner is entitled to statutory tolling during the time his state habeas petition was pending in the Superior Court. However, respondent argues that petitioner did not file his next state habeas petition with the California Court of Appeal until 247 days after the Superior Court denied his initial petition. Respondent contends that petitioner unreasonably delayed in filing his petition with the state appellate court and is therefore not entitled to statutory tolling for these 247 days. Respondent also does not dispute that petitioner is entitled to statutory tolling for the time his habeas petition was pending in the California Supreme Court. However, respondent argues that petitioner did not file his federal petition in this court until August 28, 2007, 138 days after the California Supreme Court had denied his final state petition. Accordingly, respondent concludes that at least 385 days had elapsed by the time petitioner filed his federal petition, rendering his federal petition untimely. (Resp't's Mot. to Dismiss at 3-4.)
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 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 ...