FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This action proceeds on the April 26, 2009 petition.*fn2 Respondent moves to dismiss this action upon the ground it is untimely. Petitioner opposes, asserting he is entitled to both statutory and equitable tolling.*fn3 For the reasons explained below, the court finds that the petition is untimely and therefore recommends that this action be dismissed.
In 1984, petitioner was sentenced by the Alameda County Superior Court to a state prison term of 25 years to life, following his conviction of first degree murder. Dckt. No. 1 at 2. On August 23, 2006, the Board of Parole Hearings ("Board") found petitioner unsuitable for parole. See id. at 1 (from first unnumbered exhibit, including petition filed in California Supreme Court). Thereafter, petitioner challenged the Board's decision by seeking state habeas relief, beginning February 19, 2007, when he filed his superior court petition, through June 13, 2007, when the California Supreme Court denied his petition. See Dckt. No. 13, Ex. A-F. Next, petitioner challenged the Board's decision by filing a habeas petition in this court on October 6, 2007. See Ontiveros v. Subia, No. Civ. S-07-2245 MCE EFB P, Dckt. No. 1.*fn4 On September 26, 2008, the court dismissed the petition as unexhausted and judgment was entered. Id., Dckt. No. 13, 14. Thereafter, petitioner returned to the California Supreme Court with his challenge to the Board's decision. Dckt. No. 13, Ex. G. On April 26, 2009, petitioner filed the instant petition, which also challenges the Board's 2006 decision to deny petitioner parole. Dckt. No. 1.
II. Statute of Limitations
The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1). It provides as follows:
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). Courts ordinarily deem the factual predicate to have been discovered the day the decision becomes final, i.e., 120 days after the Board finds a petitioner not suitable for parole. See Gray v. Cramer, No. S-07-1928, 2009 U.S. Dist. LEXIS 25293, at *6-7 (E.D. Cal. Mar. 27, 2009); Woods v. Salazar, No. CV 07-7197, 2009 U.S. Dist. LEXIS 64573, at *16-17 (C.D. Cal. Mar. 23, 2009), adopted by 2009 U.S. Dist. LEXIS 64575; Nelson v. Clark, No. 1:08-cv-0114, 2008 U.S. Dist. LEXIS 48682, at *7-9 (E.D. Cal. June 23, 2008), adopted in full by 2008 U.S. Dist. LEXIS 71061.
When a petitioner properly files a state post-conviction application, the limitations period is tolled and remains tolled for the entire time that application is "pending." 28 U.S.C. § 2244(d)(2). "[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post-conviction application is "pending" during the intervals between a lower court decision and filing a new petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002). A federal habeas application does not provide a basis for statutory tolling. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
The limitations period may also be equitably tolled where a habeas petitioner establishes two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). In light of this pronouncement, the Ninth Circuit has reiterated that the threshold necessary to trigger equitable tolling is very high, and clarified that equitable tolling only applies where a petitioner shows that despite diligently pursuing his rights, some external force caused the untimeliness. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009).
Petitioner has the burden of showing facts entitling him to statutory and equitable tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. ...