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 27, 2006 decision of the California Board of Parole Hearings ("Board") to deny him parole. On December 22, 2010, the undersigned ordered respondent to file and serve a response to the petition. On January 14, 2011, respondent filed the pending motion to dismiss, arguing that petitioner's habeas petition 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 27, 2006, the Board conducted a parole hearing and found petitioner unsuitable for release on parole. The Board's decision became final on July 25, 2006. (Pet. Ex.
A.) Thereafter, petitioner filed three petitions for writ of habeas corpus in state court challenging the Board's decision. Applying the mailbox rule*fn1 , on April 24, 2007, petitioner filed a petition for writ of habeas corpus in the San Diego County Superior Court. On December 17, 2008, that court denied the petition. On March 13, 2009, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Fourth Appellate District. On July 8, 2009, the Court of Appeal denied that petition. On September 14, 2009, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On August 11, 2010, the California Supreme Court denied that petition. (Resp't's Mot. to Dismiss Exs. 1-8.)
On December 2, 2010, 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 July 25, 2006, and petitioner had one year thereafter in which to file a federal habeas petition challenging that decision. Respondent contends that 273 days elapsed before petitioner filed his first petition for writ of habeas corpus in the San Diego County Superior Court. Respondent concedes that the statute of limitations was then tolled until August 11, 2010, when the California Supreme Court denied petitioner's third and final petition for writ of habeas corpus in state court. Respondent argues that from that date, however, an additional 113 days elapsed before petitioner filed the pending federal petition. Accordingly, respondent contends that by the time petitioner filed his federal habeas petition in this court, more than one year (specifically, 386 days total) had elapsed rendering the petition untimely under the AEDPA statute of limitations. (Resp't's Mot. to Dismiss at 4.)
II. Petitioner's Opposition
In opposition to respondent's motion, petitioner argues that the one-year statute of limitations in this case did not begin to run until December 17, 2008, when the San Diego County Superior Court issued its denial of his petition for writ of habeas corpus. According to petitioner, that is when he discovered his federal claims. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 3.)
In reply, respondent argues that the statute of limitations is triggered by the Board's decision denying parole and not by the San Diego County Superior Court's denial of state habeas relief. For the reasons stated in the pending motion to dismiss, respondent reiterates that the pending federal habeas petition in this case is untimely. (Resp't's Reply at 2.)
I. The AEDPA Statute of ...