FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He proceeds on his August 2, 2009 second amended petition. Dckt. No. 16. He claims that the California Department of Corrections and Rehabilitation ("CDCR") violated his due process rights by extending his minimum eligible parole date on two occasions, and that in doing so, CDCR also breached the terms of petitioner's plea agreement. Respondent moves to dismiss this action on the grounds that the petition is untimely, includes unexhausted claims, is moot, and that petitioner has procedurally defaulted. Dckt. No. 19. For the reasons explained below, the court recommends that this action be dismissed as untimely.
Petitioner is serving a fifteen-year-to-life sentence for assault on a
child causing great bodily injury or death. Dckt. No. 16 at 2. On May
2, 2007, petitioner filed a petition for writ of habeas corpus in
Solano County Superior Court, alleging that his rights were violated
when his minimum eligible parole date was moved back twice.*fn2
Resp.'s Mot. to Dism. ("Mot."), Ex. 1. The superior court
denied the petition. Id., Ex. 2. Petitioner then filed a petition for
writ of habeas corpus in the California Court of Appeal, First
Appellate District, which was also denied. Id., Exs. 3, 4. Next,
petitioner filed a petition for writ of habeas corpus in the
California Supreme Court. Id., Ex. 5. That petition was denied on
January 30, 2008. Id., Ex. 6.
Petitioner initiated this action with a petition filed on May 28, 2008. Dckt. No. 1. The court dismissed that petition with leave to amend. Dckt. No. 6. On December 14, 2008, petitioner filed an amended petition. Dckt. No. 7. On July 20, 2009, respondent moved to dismiss the amended petition and petitioner opposed the motion. Dckt. Nos. 13, 14. However, on August 2, 2009, petitioner also filed what appeared to be a second amended petition. Dckt. No. 15. The court granted petitioner leave to file a second amended petition, and denied respondent's motion to dismiss as moot. Dckt. No. 17. Currently before the court is respondent's March 9, 2010 motion to dismiss the second amended petition, which petitioner opposes.*fn3 Dckt. Nos. 19, 24. ////
II. Statute of Limitations
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.
Here, petitioner challenges CDCR's determination of petitioner's minimum eligible parole date. Specifically, petitioner claims that CDCR wrongfully moved his minimum eligible parole date from December 20, 2004, to July 26, 2007, and again to November 24, 2009. The statute of limitations for habeas petitions challenging decisions of administrative bodies commences pursuant to § 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). Because petitioner challenges a decision made by an administrative body, section 2244(d)(1)(D) applies.
According to respondent, petitioner concedes that he contacted a case records analyst in March 2001 to question his minimum eligible parole date. Mot. at 4. Therefore, respondent concludes that petitioner was aware of the factual predicate of his claims by March 2001. Id. In support of this argument, respondent cites to petitioner's opposition to respondent's first motion to dismiss, in which petitioner stated:
On March 30, 2001 [petitioner] notified J. Castaneda, Correctional Case Records Analyst, (CCRA) per State of California GA-22 "Inmate Request" requesting why [his] minimum eligible parole hearing changed from December 20, 2004 to July 26, 2007, and again to November 24, 2009?" On September 26, 2001, J. Castaneda, responded stating, "your conviction of ...