The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner proceeding without counsel in this habeas corpus action filed pursuant to 28 U.S.C. § 2254.*fn1 Petitioner challenges the 2006 and 2007 decisions of the California Board of Parole Hearings denying him parole. Presently pending is respondent's motion, filed September 2, 2009, to dismiss the petition based on the contention that it is barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1). (Dkt. No. 16.) Petitioner has filed an opposition. (Dkt. No. 17.) For the following reasons, the court seeks supplemental briefing.
The following chronology is relevant to the statute of limitations analysis.
1. Petitioner is serving a prison sentence of 17 years to life based on a second-degree homicide conviction and firearm enhancement. (Petition, Dkt. No. 1, at 2, 9.)
2. The Board of Parole Hearings denied petitioner parole on March 23, 2006, indicating that the decision would be final on July 21, 2006. (Dkt. No. 1, Exh. A.) Petitioner challenged the ruling by filing a petition for writ of habeas corpus in the Los Angeles Superior Court on December 5, 2006. (Id., Exh. M.)
3. During the pendency of his writ in superior court, petitioner was again denied parole on February 22, 2007 (id.), which was putatively final ninety days thereafter, on May 23, 2007. On July 9, 2007, petitioner filed a supplemental brief in superior court, thus challenging both Parole Board decisions. (Id.)
4. The California Supreme Court denied review on June 11, 2008. (Dkt. No. 1, at 4.) This court has not been provided the dates on which the superior court or state court of appeal acted on petitioner's state habeas challenges.
5. Petitioner filed the instant petition for writ of habeas corpus on June 15, 2009.*fn2
The Ninth Circuit has determined that AEDPA's one-year statute of limitations set forth in 28 U.S.C. § 2244 "applies to all habeas petitions filed by persons in 'custody pursuant to the judgment of a State court,' even if the petition challenges an administrative decision rather than a state court judgment." Shelby v. Bartlett, 391 F.3d 1061, 1062 (9th Cir. 2004) (citation omitted); see also Redd v. McGrath, 343 F.3d 1077, 1080-83 (9th Cir. 2003) (assuming without deciding that the AEDPA statute of limitations applies to collateral attacks on parole board decisions). When a habeas petitioner challenges an administrative decision, § 2244(d)(1)(D) governs the date on which the one-year limitation period begins to run. Shelby, 391 F.3d at 1066; Redd, 343 F.3d at 1081-83. Thus, the limitation period begins to run on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence," 28 U.S.C. § 2244(d)(1)(D), and in this context, the date of the Board's final decision. See Redd, 343 F.3d at 1084-1085; Shelby, 391 F.3d at 1065-1066.*fn3
However, the limitation period is tolled from the filing date of the first state habeas petition until the California Supreme Court rejects the final collateral challenge. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999); see 28 U.S.C.§ 2244(d)(2) (period tolled during the pendency of a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim").
In addition, equitable tolling is available "when extraordinary circumstances beyond a prisoner's control make it impossible" to timely file the federal petition. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005) (internal quotation marks and citations omitted). "That determination is highly fact-dependent and [petitioner] bears the burden of showing that equitable tolling is appropriate." Id. The Ninth Circuit has stated that, because of Congress's desire to speed up the federal habeas process, this standard presents a "high hurdle" for petitioners. Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1289 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998). "A petitioner must show that his untimeliness was caused by an external impediment and not by his own lack of diligence." Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007), citing Roy v. Lampert, 465 F.3d 964, 973 (9th Cir. 2006); see also Shannon v. Newland, 410 F.3d 1083, 1090 (9th Cir. ...