The opinion of the court was delivered by: Nita L. Stormes United States Magistrate Judge
REPORT AND RECOMMENDATION GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS [Doc. No. 9.]
Hector Bernal, a California prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging a 2002 prison disciplinary adjudication finding him guilty of trafficking a controlled substance in prison.*fn1 Bernal contends he was denied his constitutional rights to due process and a fair hearing during the administrative proceedings. (Petition "Pet." at 6a.) Respondent has filed a Motion to Dismiss the Petition as time-barred under 28 U.S.C. § 2244(d). (Resp.'s Mem. of P. & A. at 3-6.) After a thorough review, the Court RECOMMENDS that Respondent's Motion be GRANTED and the Petition be DISMISSED with prejudice as untimely.
RELEVANT PROCEDURAL HISTORY
On October 24, 2002, a senior prison disciplinary official found Bernal guilty of violating California Code of Regulations, title 15, § 3016(c), specifically Trafficking of Controlled Substances. [Lodg. No. 3 at 2.] Bernal was assessed 180 days behavior time credit forfeiture, 90 days loss of privileges, a year of random drug testing, 90 days loss of visits and 90 days of non-contact visits. [Id.] He did not pursue an administrative appeal of the disciplinary decision. [Lodg. No. 5, Pet. at 4c.]
On February 1, 2009, almost seven years after the prison disciplinary proceedings, Bernal filed a habeas petition in state Superior Court alleging, among other things, that the original guilty finding of trafficking in 2002 lacked the requisite showing of a preponderance of the evidence. (Lodg. No. 5, at 3a-4d). On February 11, 2009, the court denied the petition finding there was some evidence to support the 2002 drug trafficking finding. [Lodg. No. 6 at 1].
On February 28, 2009, Bernal filed a habeas petition in the Court of Appeal, reasserting the claims he made in his state habeas petition. [Lodg No. 7.] On March 17, 2009, the court denied the petition without comment. [Lodg. No. 8.] On April 13, 2009, Bernal filed a petition for review with the California Supreme Court, which was summarily denied on June 10, 2009. [Lodg. Nos. 9 & 10.]
On October 2, 2009, Bernal filed the Petition for Writ of Habeas Corpus now before this Court. The Petition raises a due process challenge to the 2002 prison disciplinary finding of guilt for drug trafficking. [Id. at 6a.]
Bernal's Petitionfails to meet the threshold requirement of timeliness, thus the Court's discussion addresses only the issue of the applicable statute of limitations. White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year statute of limitations for filing a federal habeas petition by a person in custody pursuant to the judgment of a State court. 28 U.S.C. § 2244(d)(1); Allen v. Siebert, 552 U.S. 3, 4 (2007). This one-year time limit also applies to petitions challenging an administrative decision, including those issued pursuant to a prison disciplinary proceeding. Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004); Redd v. McGrath, 343 F.3d 1077, 1081-83. In Redd, the court stated the section of AEDPA applicable to petitions challenging such administrative decisions is subsection 2244(d)(1)(D). The relevant section reads:
(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--
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...