The opinion of the court was delivered by: Gregory G. Hollows United Stated Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his denial of parole by the Board of Parole Hearings (BPH).
Pending before the court is respondent's July 21, 2010, motion to dismiss on the grounds that this action is barred by the statute of limitations. Doc. 13. Petitioner filed an opposition on August 10, 2010. Doc. 14. After carefully considering the entire record, the undersigned recommends that respondent's motion to dismiss be denied.
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 BPH denied the administrative appeal. Id.
Since Redd, the administrative review process for parole suitability hearings has been eliminated. While petitioner was certainly aware of the BPH decision at his hearing on January 2, 2008, the decision did not become final under California law until 120 days after the hearing, on May 1, 2008.*fn1 See Solorio v. Hartley, 591 F. Supp. 2d. 1127, 1130 (C.D. Cal. 2008); 15 C.C.R. § 2041(a) ("Board decisions ... are proposed decisions and shall be reviewed prior to their effective date ...."); § 2041(h) ("Proposed decisions made at hearings for prisoners serving a sentence of life with the possibility of parole may be reviewed...."); § 2043 ("Any proposed decision granting, modifying, or denying a parole date for a life prisoner, exclusive of those made during Progress Hearings, shall become final no later than 120 days after the hearing at which the proposed decision was made.").*fn2
Thus, the statute of limitations began to run on May 2, 2008, the day after the Board's decision became final. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is until May 2, 2009, to file a timely federal petition, absent applicable tolling. The instant federal petition, filed on March 30, ...