The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding without counsel and in forma pauperis, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss the petition on the ground that it is time-barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and for failure to state a cognizable habeas claim. Petitioner filed an opposition to the motion, which includes requests for discovery and an evidentiary hearing (Dkt. No. 13), and respondent filed a reply (Dkt. No. 14).
For the following reasons, the court denies petitioner's requests and recommends that respondent's motion to dismiss be granted.
In 1983, petitioner was sentenced to a term of fifteen-years-to-life plus one year for second degree murder, a weapon use enhancement, kidnapping, and assault with a deadly weapon. (Dkt. No. 10, Exh. 1.) At a disciplinary hearing held November 1, 2007, petitioner was found guilty by a preponderance of the evidence of "the charge of [r]efusing to be searched/ resisting detainment" and "battery on staff," based on a prison incident that occurred on October 7, 2007.*fn1 (Dkt. No. 10 at 23-25 (Exh. 4); Dkt. No. 1 at 18-20 (Rules Violation Report ("RVR"), Log No. S2-07-10-1089).)*fn2 The conviction was classified as a Serious Class B offense, and resulted in petitioner's loss of 150 days good-time credit, and referral for a segregated housing assessment. (Dkt. No. 10 at 23, 25, 61.) Petitioner challenged the disciplinary action pursuant to the administrative grievance process, initially stating in pertinent part:
[I] also request the video of the incident because it may contain details of information to be relied upon in the fact-finding phase. . . . [I request] [t]hat the video be reviewed and that the CDC 115 Finding and Disposition be reheard.
(Dkt. No. 10 at 9 (Exh. 3) (Inmate Appeal Form, Log No. 08-00483).) Petitioner's request to view the subject video and to have his RVR re-heard was denied at the first and second levels, the latter on the ground that "[t]he tape recording was not used as evidence or in the adjudication of the RVR," and "[t]he evidence is compelling in that your resistive behavior caused a battery on staff and the use of force to control your actions." (Dkt. No. 10 at 65-67.) Following the rejection of his grievance at the Second Level Review, petitioner asserted that it was a due process violation to exclude the subject video, which would "prove" that petitioner "didn't 'battery on staff'" (sic). (Id. at 10.) Petitioner's administrative grievance was denied at the final level of review on September 12, 2008. (Dkt. No. 10 at 10, 71.)
On December 17, 2008, petitioner filed a petition for writ of habeas corpus in the Solano County Superior Court, alleging that the disciplinary conviction violated his due process and equal protection rights. (Dkt. No. 10, Exh. 4.) That petition was denied on March 2, 2009. (Id., Exh. 5.)
On June 20, 2009, petitioner challenged the disciplinary decision in a petition for writ of habeas corpus filed in the California Court of Appeal. (Id., Exh. 6.) That petition was denied on June 25, 2009. (Id., Exh. 7.)
On July 26, 2009, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, again challenging the disciplinary decision. (Id., Exh. 8.) That petition was summarily denied on September 9, 2009. (Id., Exh. 9.)
Petitioner filed the instant federal petition on August 1, 2010. The petition asserts a denial of petitioner's due process and equal protection rights as a result of the hearing officer "withholding" ("not present[ing]") the subject video evidence. (Dkt. No. 1 at 4.) Petitioner asserts that, had this evidence been admitted at his disciplinary hearing, "the outcome would've been different;" the evidence "would have completely exonerate[d] petitioner," and would "clearly prove petitioner did not commit Battery on Staff;" and that "Petitioner is Actually Innocent." (Id. at 4, 7-9, 13.) Petitioner seeks discovery of the video, and an evidentiary hearing on his actual innocence claim. Ultimately, petitioner seeks expungement of the disciplinary conviction and restoration of his lost credits.
Respondent moves to dismiss petitioner's federal petition on the ground that it is time-barred and because petitioner has failed to state a cognizable habeas claim.
A. STATUTE OF LIMITATIONS
AEDPA's one-year statute of limitations, set forth in 28 U.S.C. § 2244, applies to all federal habeas corpus petitions filed by "a person in custody pursuant to the judgment of a State court," 28 U.S.C. § 2244(d)(1), "even if the petition challenges a pertinent administrative decision rather than a state court judgment," Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004). When a habeas petitioner challenges an administrative decision, § 2244(d)(1)(D) governs the date on which the statute of limitations begins to run, that is, "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."*fn3 Where the petitioner is challenging a prison disciplinary conviction, the statute of limitations begins to run when petitioner's final administrative appeal is denied. Shelby, 391 F.3d at 1066; see also Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003) (assuming without deciding that the AEDPA statute of limitations applies to collateral attacks on parole board decisions).
The limitation period is statutorily tolled during the pendency of "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim . . . ." 28 U.S.C. § 2244(d)(2). Moreover, "[t]he period between a California lower court's denial of review and the filing of an original petition in a higher court is tolled --because it is part of a single round of habeas ...