The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Respondent moves to dismiss the petition for writ of habeas corpus filed by petitioner, a state prisoner who proceeds without counsel in this action filed pursuant to 28 U.S.C. § 2254.*fn1 On May 26, 2010, this court directed petitioner to file supplemental briefing, which petitioner timely filed on June 3, 2010. Respondent was given the opportunity to respond, but did not file a reply.
Pursuant to his petition for writ of habeas corpus filed June 15, 2009,*fn2 petitioner challenges the 2006 and 2007 decisions of the California Board of Parole Hearings denying petitioner parole. Respondent filed a motion to dismiss on September 2, 2009, based on the contention that the petition 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.) For the following reasons, the court recommends that respondent's motion be denied.
AEDPA's one-year statute of limitations, set forth in 28 U.S.C. § 2244,*fn3 "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), or in this context, the date of the Board's final decision. See Redd, 343 F.3d at 1084-85; Shelby, 391 F.3d at 1065-66.*fn4
Generally, this limitation period is statutorily 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. 2005) (observing that in each of the cases in which equitable tolling has been applied the requisite "extraordinary circumstances" have been based on the "wrongful conduct" of another that "actually prevented the prisoner from preparing or filing a timely habeas petition").
Respondent contends that the instant petition is necessarily untimely because more than one year passed between the California Supreme Court's denial of review on June 11, 2008,*fn5 and the date petitioner filed the instant petition on June 15, 2009, and that there is no basis for equitable tolling. Thus, respondent does not frame his statute of limitations contention commencing with the operative date of the Board's decision (the "factual predicate" described in 28 U.S.C. § 2244(d)(1)(D)), but argues that such analysis is unnecessary.
Petitioner responds that the limitation period should be equitably tolled for the following reasons and periods: (1) petitioner did not receive the June 11, 2008 order of the California Supreme Court until "July 2008" (date not provided); (2) petitioner was housed in administrative segregation from April 23, 2008 through September 11, 2008, and did not received his legal materials until September 20, 2008; (3) petitioner was again placed in administrative segregation on December 4, 2008, and although released to the regular population on December 17, 2008, did not again receive his legal materials until January 2, 2009; (4) petitioner was placed on "out to court" status without access to his legal materials from February 5, 2009 until March 2, 2009, and again from March 17, 2009 until May 7, 2009. (Petitioner's Supplemental Brief (hereafter "PSB"), at pp. 4-5, and attached exhibits.)
The court's analysis herein is premised on the factual predicate of the Board's parole decisions for which the following chronology is relevant:
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 became final ninety days thereafter, on May 23, 2007. On July 9, 2007, petitioner filed a supplemental brief in ...