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. This action is proceeding on the original petition filed, pursuant to the mailbox rule, on December 29, 2010. Petitioner alleges that respondent violated the terms of his plea agreement by not awarding him 50% good time credits.
Pending before the court is respondent's motion to dismiss on grounds that this action is barred by the statute of limitations. After carefully considering the record, the undersigned recommends that respondent's motion to dismiss be granted.
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.
When a habeas petitioner challenges an administrative decision, section 2244(d)(1)(D) governs the date on which the limitation period begins to run. Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004); Redd v. McGrath, 343 F.3d 1077, 1081--83 (9th Cir. 2003). Under § 2244(d)(1)(D), the limitation period begins to run once "the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). Thus, the point at which an administrative decision becomes final is the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. Id. In Shelby and Redd, the pertinent date was the date on which notice of the decision was received by the petitioner. Thus, the statute of limitations was held to have begun running the day after notice of the decision was received. Shelby, 391 F.3d at 1066; Redd, 343 F.3d at 1082.
Petitioner's administrative decision challenging the alleged miscalculation of time credits was denied at the final level, i.e. third level, of review on August 9, 2006. (Dkt. No. 24-1 at 2.) Therefore, the statute of limitations began to run on August 10, 2006. Petitioner had one year from that date to file a timely federal petition. The instant action, filed December 29, 2010, is not timely unless petitioner is entitled to statutory or equitable tolling.
The undersigned first considers whether petitioner is entitled to statutory tolling pursuant to 28 U.S.C. ...