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Scott v. Haviland

July 20, 2010

NOEL PHILLIPE SCOTT, PETITIONER,
v.
JOHN W. HAVILAND, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Introduction

Petitioner, a state prisoner proceeding pro se, has filed a petition pursuant to 28 U.S.C. § 2254 challenging a Board of Parole Hearings (Board) 2007 parole denial.*fn1 Originally sentenced to a 25-year to life term for first degree murder in 1990, with an additional two-year term for use of a firearm, petitioner raises eight grounds challenging the decision. Petition, pp. 2, 7-59.

Pending before the court is respondent's motion to dismiss the petition as untimely, filed on December 30, 2009. After careful consideration, the court must recommend the motion be denied.

Motion to Dismiss

As noted, respondent moves for dismissal of this action contending that the petition is untimely under AEDPA.

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 Board denied the administrative appeal. Id.

Since Redd, the administrative review process for parole suitability hearings has been eliminated. According to the transcript from the August 14, 2007, initial parole consideration hearing, the decision finding petitioner unsuitable was to become final on December 12, 2007. See Exhibit (Exh.) A of exhibits lodged in this court on November 9, 2009 (apparently lodged initially in the Central District with the filing of the petition, Docket # 12). Accordingly, petitioner had one year from December 12, 2007, to file a timely federal petition. The instant action, filed, by ...


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