The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
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 2005 Board of Parole Hearings (BPH) decision that found petitioner unsuitable for parole. This action proceeds on the second amended petition. Dkt. No. 17.
Pending before the court is respondent's October 19, 2009 motion to dismiss on the grounds that this action is barred by the statute of limitations. Dkt. No. 22. Petitioner filed an opposition and respondent filed a reply. Dkt. Nos. 23, 28. After carefully considering the entire record, the court recommends that respondent's motion to dismiss be granted and this case closed.
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 May 12, 2005 suitability hearing before the BPH, the decision finding petitioner unsuitable for parole became final on September 9, 2005.*fn1 Petition at 509.*fn2
The statute of limitations began to run the next day, on September 10, 2005. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is until September 10, 2006, to file a timely federal petition, absent applicable tolling. The instant federal petition, filed on December 6, 2007, ...