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 July 25, 2006 decision of the California Board of Parole Hearings ("Board") to deny him parole. On July 1, 2008, the undersigned ordered respondent to file and serve a response to the petition. On October 2, 2008, respondent filed the pending motion to dismiss, arguing that petitioner's habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed a timely opposition to respondent's motion to dismiss. Respondent has not filed a reply.
On July 25, 2006, the Board found petitioner unsuitable for parole. (Pet., Ex. A.) On October 23, 2007, petitioner filed a petition for writ of habeas corpus in the San Francisco County Superior Court challenging the Board's 2006 decision. (Resp't's Ex. 1.) On January 23, 2008, the Superior Court denied the petition. (Pet., Ex. E.) Petitioner subsequently filed a petition for writ of habeas corpus in the California Court of Appeal which was denied on February 8, 2008. (Pet., Ex. F.) Finally, on February 20, 2008, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Resp't's Ex. 2.) On April 16, 2008, the California Supreme Court denied the petition. (Pet., Ex. G.) Petitioner filed his federal petition on May 21, 2008.
RESPONDENT'S MOTION TO DISMISS
Respondent moves to dismiss arguing that petitioner's federal habeas petition is time-barred. Specifically, respondent argues that the Board's decision to deny petitioner parole became final on November 22, 2006 and that petitioner had one year thereafter in which to file a federal habeas petition challenging that decision. (Resp't's Mot. to Dismiss at 3.)
Respondent acknowledges that the proper filing of a state post-conviction application presenting the pertinent claims tolls the one-year federal statute of limitations period. However, respondent argues that petitioner did not file his first state habeas petition in the San Francisco County Superior Court until October 23, 2007, after 335 days of the federal limitations period had run. Respondent notes that the California Supreme Court denied petitioner's final state habeas petition on April 16, 2008, and that the statute of limitations for the filing of a federal petition began to run again on that date until it expired on May 16, 2008. Respondent observes that petitioner did not file his federal petition until May 21, 2008. Accordingly, respondent concludes petitioner's federal petition is time-barred, having been filed five days after the statute of limitations expired. (Resp't's Mot. to Dismiss at 4.)
Petitioner has filed an opposition to respondent's motion to dismiss arguing that he faced various circumstances, some of them extreme, that prevented him from timely filing his federal habeas petition. Petitioner has attached to his opposition a copy of a CSP-Solano program status report effective January 23, 2008, stating that Facilities 3 and 4 would be on a modified program until all Level II inmates had a tuberculosis test. According to the status report, only inmates with approved court deadlines could access the law library. Petitioner argues that from January 2008 to May 2008, he was "quarantine[d]" on numerous occasions, was finally diagnosed with tuberculosis and is now receiving treatment. Petitioner contends that "standing in long medication lines and trying to make it to the law library to do research on medication day is sometimes impossible." (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 1-2 & Ex. A.)
In addition, petitioner has attached to his opposition copies of CSP-Solano program status reports effective March 24, 2008, and March 27, 2008, which state that various facilities would be on a modified program because staff discovered an anonymous note indicating that there was a possible "zip gun" within the facility. The reports again indicate that only inmates with approved court deadlines could access the library during this time. Finally, petitioner has submitted a copy of a CSP-Solano program status report effective April 1, 2008, which states that CSP-Solano would be on lockdown because of the existing "zip gun" threat. This report also indicates that while the lockdown was in place, only inmates with approved court deadlines could access the library. Based on these circumstances, petitioner argues that the court should allow his case to move forward and decide his petition on the merits. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 1-2 & Exs. B-D.)
I. The AEDPA Statute of Limitations
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"). AEDPA 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 ...