The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 prison disciplinary conviction for possession of contraband (a cell phone) in violation of Cal. Code Regs. tit. 15, § 3006. This action is proceeding on the original petition filed, pursuant to the mail box rule, on May 6, 2010.
In the answer, respondent argues that the petition is barred by the statute of limitations and that the claims are procedurally barred. Respondent also argues that the claims should be denied on the merits.
These arguments would have been more appropriately raised in a motion to dismiss. Nevertheless, petitioner had an opportunity to oppose these arguments (Docket ("Dkt.") No. 20), respondent filed a reply (Dkt. No. 220, and petitioner filed a response (Dkt. No. 23). Accordingly, the issues have been fully briefed.
After carefully considering the record, the undersigned recommends that the petition be dismissed on grounds that this action is barred by the statute of limitations and that the claims are procedurally barred. For these reasons, the undersigned does not reach the merits of petitioner's claims.
II. Statute of Limitations 28 U.S.C. § 2244(d)(1) sets forth the relevant statute of limitations: 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.
Triggering Date for Statute of Limitations In most cases, the limitations period begins running on the date that the
petitioner's direct review became final, pursuant to subsection (d)(1)(A). In a situation such as this, however, where the petitioner is challenging a prison disciplinary conviction, the Ninth Circuit has held that direct review is concluded and the statute of limitations commences, pursuant to subsection (d)(1)(D), when the final administrative appeal is denied. Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003) (holding that the Board of Parole Hearing's denial of an inmate's administrative appeal was the "factual predicate" of the inmate's claim that triggered the commencement of the limitations period); Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004) (holding that the statute of limitation does not begin to run until a petitioner's administrative appeal has been denied).
Respondent contends that petitioner exhausted his administrative appeals only through the second level of administrative review. Accordingly, respondent contends, the triggering event for the statute of limitations is the date that petitioner received his second level administrative appeal response, i.e. November 12, 2008.
In his opposition, petitioner argues that his attempts to administratively exhaust his claims to the final level of review, i.e. Director's Level, were impeded by prison officials. Petitioner argues that the triggering date for the statute of limitations should be the date he made his final attempt to obtain a Director's Level response to ...