FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the March 30, 2007 decision of the California Board of Parole Hearings ("Board") to deny him parole. On December 31, 2009, the undersigned ordered respondent to file and serve a response to the petition. On March 1, 2010, respondent filed the pending motion to dismiss, arguing that petitioner's federal habeas application is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed an opposition to the motion, and respondent has filed a reply.
On March 30, 2007, the Board conducted a parole hearing and found petitioner unsuitable for release on parole. Petitioner filed three post-conviction collateral challenges in state courts to the Board's decision. Applying the mailbox rule*fn1 , on November 25, 2007, petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court. (Resp't's Mot. to Dismiss (hereinafter "MTD"), Ex. 1.) On January 31, 2008, the Superior Court denied that petition. (MTD, Ex. 2.) On March 4, 2008, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Second Appellate District. (MTD, Ex.3.) On March 21, 2008, the Court of Appeal denied that petition. (MTD, Ex. 4.) On September 2, 2008, petitioner filed a petition for habeas corpus in the California Supreme Court. (MTD, Ex.
5.) On March 11, 2009, the California Supreme Court denied that petition. (MTD, Ex. 6.)
On October 24, 2009, petitioner commenced this action by filing a federal petition for writ of habeas corpus with this court.
RESPONDENT'S MOTION TO DISMISS
Respondent moves to dismiss the pending habeas petition, arguing that it is time-barred. Specifically, respondent argues that the Board's decision to deny petitioner parole became final on March 31, 2007, and petitioner had one year thereafter in which to file a federal habeas petition challenging that decision.
Respondent acknowledges that the proper filing of a state post-conviction application presenting the pertinent claims tolls the statute of limitations period. However, respondent contends that 239 days of the limitations period had already elapsed before petitioner filed his first habeas petition in the Los Angeles County Superior Court. (MTD at 3.) Respondent concedes that the AEDPA statute of limitations for the filing of a federal petition was tolled while petitioner's applications before the Los Angeles County Superior Court and the California Court of Appeal were pending, specifically between November 25, 2007 and March 21, 2008. (Id.)
However, respondent argues that petitioner is not entitled to statutory tolling for the period between the Court of Appeal's denial of habeas relief on March 21, 2008 and petitioner's filing of a habeas petition with the California Supreme Court on September 2, 2008, because petitioner unreasonably allowed 165 days to lapse before presenting his habeas application to the California Supreme Court. (Id. at 3-4.) Respondent argues that petitioner is not entitled to equitable tolling of the limitations period. Respondent contends, therefore, that by the time petitioner filed his federal habeas petition on October 24, 2009, the AEDPA statute of limitations had therefore long since expired. (Id. at 4.)
In opposition to the motion to dismiss, petitioner argues that the one-year statutory time period under AEDPA did not begin to run until the Board's March 30, 2007 decision became final on July 28, 2007. (Pet'r's Opp'n to Resp't's Mot. to Dismiss (hereinafter "Opp.") at 2-4; see id., Ex. A at 8.*fn2 ) Accordingly, he claims, only 120 days of the limitations period elapsed before he filed his first habeas petition in the Superior Court. (Opp. at 4.)
Petitioner also claims that he is entitled to statutory and/or equitable tolling for the entire period between his filing of his first petition for habeas relief in state court and his filing of his federal petition. Petitioner claims he is entitled to this tolling because "he is a pro se inmate who is litigating his own case;" because he "had no knowledge concerning parole matters and had to conduct extensive research prior to preparing and filing his petition initially;" and because, due to crowded prison conditions at his place of incarceration, he had limited access to the prison law library. (Id. at 4-5.)
STATUTE OF LIMITATIONS UNDER THE AEDPA
Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The AEDPA imposed a one-year statute of limitations on the ...