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McElroy v. Haviland

March 24, 2010

JAMES MCELROY, PETITIONER,
v.
JAMES HAVILAND, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2007 Board of Parole Hearings (BPH) decision that found petitioner unsuitable for parole.

Pending before the court is respondent's February 2, 2010 motion to dismiss on the grounds that this action is barred by the statute of limitations. Dkt. No. 10. Petitioner filed an opposition and respondent filed a reply. Dkt. Nos. 12, 13. After carefully considering the entire record, the court recommends that respondent's motion to dismiss be denied.

II. Motion to Dismiss

The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(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 the exercise of due diligence.

The statute of limitations for habeas petitions challenging parole suitability hearings is based on § 2244(d)(1)(D), i.e. the date on which the factual predicate of the claim or claims could have been discovered through the exercise of due diligence. Redd v. McGrath, 343 F.3d 1077 (9th Cir. 2003). At the time the Ninth Circuit decided Redd, suitability decisions could be administratively appealed. Id. at 1084. In Redd, the Ninth Circuit held that the factual basis of the petitioner's claims challenging a parole suitability hearing could have been discovered through the exercise of due diligence when the BPH denied the administrative appeal. Id.

Since Redd, the administrative review process for parole suitability hearings has been eliminated. According to the transcript from petitioner's March 23, 2007, suitability hearing before the BPH, the decision finding petitioner unsuitable for parole became final on July 21, 2007. Petition at 178.*fn1

Respondent argues that the statute of limitations ran from the date of the hearing, i.e. March 23, 2007, rather than from the date it became final on July 21, 2007. The undersigned does not agree. The BPH decision explicitly stated, "This decision will be final on JUL 21 2007. You will be promptly notified if, prior to that date, the decision is modified." Petition at 178. Therefore, it was entirely reasonable for petitioner to rely on July 21, 2007, to be the date ...


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