The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding with appointed counsel, has filed a petition pursuant to 28 U.S.C. § 2254. Petitioner, following his plea, was sentenced in 1998 to a term of fifteen-years-to-life for attempted murder with a deadly weapon. Petition, pp. 1, 10. Petitioner herein challenges the decision by the Board of Parole Hearings denying parole at a 2007 subsequent parole consideration hearing. Id. at 1, 88. Pending before the court is respondent's February 16, 2010, motion to dismiss the petition as barred by the statute of limitations.
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 May 31, 2007, subsequent parole consideration hearing, the decision finding petitioner unsuitable was to become final on September 28, 2007. Motion to Dismiss (MTD), Exhibit (Ex.) 1, Document 11-1, p. 86. Accordingly, petitioner had one year from September 28, 2007, to file a timely federal petition. The instant action, filed, by very liberal application of the mailbox rule, on October 21, 2009,*fn2 is not timely unless petitioner is entitled to statutory or equitable tolling.
Respondent argues that the statute of limitations ran from the date of the hearing, i.e., May 31, 2007, rather than from the date it became final on September 28, 2007, because petitioner was present at the parole hearing and therefore was aware of the factual predicate for his federal habeas claims. MTD, p. 2. This argument, however, is not persuasive because "[t]he challenge to the Board's decision must be viewed as a whole and not based on certain ...