FINDINGS AND RECOMMENDATIONS
Petitioner is a former state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. Respondent moves to dismiss this action on the grounds that it is a second or successive petition, is untimely, and does not present a federal question. For the reasons explained below, the motion must be denied.
Petitioner was convicted of first degree murder in the Los Angeles County Superior Court in 1976, and sentenced to an indeterminate life term of seven years to life. Pet. at 2.
On January 6, 1998, petitioner filed a habeas petition in the Los Angeles County Superior Court, challenging the Board of Parole Term's failure to fix his term at his parole hearing on August 27, 1997. Resp.'s Mot. to Dism. ("Mot."), Ex. 1. The court denied relief. Id., Ex. 2.
Petitioner filed petitions in the California Court of Appeal and the California Supreme Court, which were denied. Id., Exs. 3-6. Finally, petitioner filed a petition in the Central District on July 28, 1998. Id., Ex. 7. It was denied on January 24, 2000.*fn1 Id., Ex. 12.
Petitioner filed additional state habeas petitions in 2002 and 2003. Id., Exs. 15-19.
On November 6, 2006, petitioner filed a habeas petition in the Los Angeles County Superior Court challenging the Board of Parole Term's failure to fix his term at his parole hearing on May 6, 2006.*fn2 See id., Ex. 21. The petition was denied on April 16, 2007. Id., Ex. 24. Petitioner filed a petition in the California Court of Appeal on July 25, 2007. Id., Ex. 25. On August 23, 2007, the court denied the petition, stating that petitioner had failed to provide a record and therefore had not made a prima facie showing of entitlement to relief. Id., Ex. 26. Petitioner then filed a petition in the California Supreme Court on January 16, 2008. The court denied the petition on June 25, 2008.*fn3 Id., Ex. 28.
Petitioner filed the instant petition on August 3, 2008.*fn4 Pet., Proof of Service.
II. Second or Successive Petition
Respondent's motion contains a single-paragraph argument that the court lacks jurisdiction because the instant petition is second or successive. See Mot. at 9. A petition is second or successive if it makes "claims contesting the same custody imposed by the same judgment" that the petitioner previously challenged, and on which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007); see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive petition in a district court, a petitioner must obtain from the appellate court "an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Without an order from the appellate court, the district court is without jurisdiction to consider a second or successive petition. See Burton, 549 U.S. 147.
The instant petition is not second or successive because it does not challenge the same judgment as petitioner's previous federal petition. His 1998 district court petition challenged the Board of Parole Term's failure to fix his term on August 8, 1997. See Mot., Ex. 7 (petition), Ex. 10 at 7-8 (Central District opinion holding that petitioner's denial of due process claim in connection with the board's August 28, 1997 denial of parole was meritless). In contrast, the instant petition challenges the Board's failure to fix his term on May 9, 2006. See Petition (claiming that "same grounds herein" were raised in 2006 Los Angeles County Superior Court petition; Los Angeles County Superior Court order denying 2006 petition and holding that there was some evidence to support the board's May 9, 2006 denial of parole.). See Bratton v. Hernandez, No. 08-cv-1932, 2009 WL 2366469, at *4 (S.D. Cal. July 28, 2009) (petition was second or successive to the extent it challenged parole board's 2006 denial of parole, but not to the extent that it challenged board's 2008 decision). There may be overlapping issues from both parole board hearings, but the instant petition challenges a different, later parole board determination emanating from a different hearing than the decision that was challenged in the earlier petition. Therefore, the court has jurisdiction over this action.
III. Statute of Limitations
A one-year statute of limitations applies to federal habeas corpus petitions. 28 U.S.C. § 2244(d)(1). In habeas actions challenging parole decisions, the limitations period begins to run when the petitioner could have discovered the factual predicate of the claim through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1)(D); Redd v. McGrath, 343 F.3d 1077 (9th Cir. 2003).
When a petitioner properly files a state post-conviction application, the limitations 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). California, however, has no clear rule governing the time for filing post-conviction motions. Instead, "a state prisoner may seek review of an adverse lower court ...