FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss on the ground that this action is untimely and contains unexhausted claims. For the reasons explained, a portion of the petition is untimely and the remainder has not been exhausted, and the motion should therefore be granted.
Petitioner was convicted of torture with the use of a deadly weapon, corporal injury to a spouse, and assault with a deadly weapon in 1996. Resp.'s Mot. to Dism. ("Mot."), Ex. 4 at 1. He is currently serving a sentence of life with the possibility of parole, plus one year. Id., Ex. 2 at 1. At petitioner's parole suitability hearing on January 12, 2005, the California Board of Parole Hearings ("Board") found him unsuitable for parole. Pet., Ex. A at 84. Petitioner filed a petition for writ of habeas corpus with the Superior Court of San Diego County to challenge the 2005 parole denial on August 21, 2005. Mot., Ex. 1 at 59-60. The Superior Court denied the petition on November 9, 2005. Id., Ex. 2. Petitioner then filed a habeas petition with the California Court of Appeal for the Fourth Appellate District on January 30, 2007. Id., Ex. 3 at 73-74. While that petition was pending, the Board again found petitioner unsuitable for parole at a hearing held February 27, 2007. Pet., Ex. N at 1-2. The Court of Appeal denied petitioner's application on March 24, 2007. Mot., Ex. 4. On October 28, 2007, petitioner filed a habeas petition with the California Supreme Court. Id., Ex. 5 at 56. That petition challenged the Board's 2005 denial of parole. Id., Ex. 5. Whether the petition also effectively challenged the 2007 parole denial is at issue in the current motion. A printout from appellatecases.courtinfo.ca.gov shows that the California Supreme Court denied the petition on April 23, 2008. Id., Ex. 6. Respondent has not provided this Court with the actual order of denial, but petitioner does not dispute that his petition was summarily denied on that date. Petitioner filed the instant federal petition on May 26, 2008.
II. Statute of Limitations
A one-year limitation period for seeking federal habeas relief begins to run from the latest of the date the judgment became final on direct review, the date on which a state-created impediment to filing is removed, the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review or the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).
There is no tolling of this one-year period "from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). However, once a petitioner properly files a state post-conviction application the period is tolled, and remains tolled for the entire time that application is "pending." 28 U.S.C. § 2244(d)(2). "[A]n application is properly filed when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post-conviction application is "pending" during the intervals between a lower court decision and filing a new petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002).
Finally, a federal habeas petition does not toll the limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
The one-year limitations period may, in some circumstances, be subject to equitable tolling. The United States Supreme Court has recognized that a habeas petitioner "seeking equitable tolling bears the burden of establishing two elements: (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, 418 (2005). In light of this pronouncement, the Ninth Circuit has clarified its own standard as follows:
The threshold for obtaining equitable tolling is very high, but it applies where a petitioner shows that despite diligently pursuing his rights, some extraordinary circumstance prevented him from timely filing.
Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner has the burden of showing facts entitling him to equitable tolling. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
A. Proper Limitations Period Start-Date
Respondent contends that the federal petition's claims with respect to the Board's 2005 parole denial ("2005 claims") are untimely. To rule on the timeliness issue, the Court must first determine when AEDPA's limitations period began to run on the 2005 claims.
Where a petitioner challenges a decision denying him parole, the limitations period generally begins to run when the petitioner could have discovered the factual predicate of those claims through the exercise of due diligence. Redd v. McGrath, 343 F.3d 1077, 1082-85. Respondent argues that limitations period began on the date that the Board panel issued its decision even though that decision did not become final for another 120 days, pending a review process. See Cal. Code Regs. tit. 15, § 2041(h). Petitioner argues that he did not know the factual predicate of his claims until the decision became final, especially because the panel indicated that it intended to investigate the veracity of his laudatory chronos following the hearing.
The Court finds that the limitations period on the 2005 claims did not begin to run until the Board's decision became final -- January 12, 2005 plus 120 days, or May 12, 2005. Before then, the decision was subject to change, and thus the factual predicate of petitioner's claims was not capable of discovery. See id. ("Within 110 days of the hearing, the chief counsel, or a designee, may: (I) affirm the proposed decision, (ii) order a new hearing, or (iii) modify the proposed decision without a new hearing.") This conclusion accords with the holding in Redd, in which the Ninth Circuit held that the factual predicate of a parole denial claim became capable of discovery at the conclusion of the prison appeals process (which has since been abolished in California). Redd, 343 F.3d at 1084. The court characterized its holding as in harmony with other federal courts of appeal, which had held that the ...