ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his sentence imposed in 1980 for murder. In a § 2254 action, relief is only appropriate if the petitioner shows he is in state custody in violation of federal law. 28 U.S.C. § 2254(a).
The operative petition before the court is the amended petition filed by petitioner on July 17, 2009. The court construes that petition to contain the following allegations of custody in violation of federal law: Petitioner has been held in prison past the fifteen year term he agreed to serve in his plea agreement, in violation of the Due Process Clause of the Fourteenth Amendment. At his September 20, 2006 parole hearing, petitioner's counsel violated petitioner's Sixth Amendment right to effective assistance of counsel by failing to present evidence to the Board of Prison Terms indicating petitioner had served the sentence of imprisonment he agreed to serve in his plea agreement.
Respondent's July 12, 2010 motion to dismiss is before the court. In the motion, respondent argues that this matter should be dismissed because it is successive under 28 U.S.C. § 2244. It is true that petitioner has another petition for writ of habeas corpus pending in this court, case no. CIV-S-09-2521 LKK KJM P. However, that action was commenced on September 1, 2009. Because this action was commenced earlier, in April 2009, it is not successive. In any event, the only claim in CIV-S-09-2521 LKK KJM P upon which petitioner may proceed is the same as claim one identified above. In a separate order the court will file in CIV-S-09-2521 LKK KJM P, the court will recommend that CIV-S-09-2521 LKK KJM P be dismissed as duplicative.
Respondent also argues this action is time-barred. A one-year limitations period applies to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation runs 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.
28 U.S.C. § 2244(d)(1). The limitations period is tolled, however, for the time a properly filed application for post-conviction relief with respect to the pertinent judgment or claim is pending in the state court. See 28 U.S.C. § 2244(d)(2).
With respect to petitioner's first claim, petitioner was aware of the factual predicate at some point in 1995 when petitioner was not released from prison after serving fifteen years. However, the limitation period could not have commenced under 28 U.S.C. § 2244(d)(1)(D) until the statute of limitations was enacted on April 24, 1996. See Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1286-87 (9th Cir. 1997).
This action was commenced on April 8, 2009.*fn1 Petitioner does not point to facts indicating that the limitations period was tolled for the nearly thirteen years that would be needed to save his first claim despite the fact that it is his burden to do so. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002). Therefore, claim one should be dismissed.
As for claim two, the limitations period began at the latest under § 2244(d)(1)(D) when the decision on September 20, 2006, to deny petitioner parole became final. See Redd v. McGrath, 343 F.3d 1077, 1081-82 (9th Cir. 2003). The decision to deny petitioner parole became final on January 18, 2007, 120 days after the denial. See Cal. Code Regs. tit 15, § 2043. The limitations period commenced, at the latest, the next day. It is arguable the limitations period was tolled until April 11, 2007, because between January 18, 2007 and April 11, 2007, petitioner's application for writ of habeas corpus, including claim two, was pending before the California Supreme Court. Mot. to Dismiss, Exs. 2 & 3. There does not appear to be any basis to toll the limitations period past April 11, 2007, however. Because this action was not filed in this court until April 8, 2009, claim two also is time-barred.
For these reasons, petitioner's application for writ of habeas corpus should be dismissed as time-barred.
Petitioner also has three motions pending (docket entries #46, #50, #51 and #56). In light of the court's recommendation that this action be dismissed, and good ...