FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of first degree murder and burglary in the Santa Clara County Superior Court. He challenges a 2008 decision by the Board of Parole Hearings (hereinafter "Board") finding him unsuitable for parole. Respondent moves to dismiss this action on the grounds that it is barred by the one-year statute of limitations and that petitioner has failed to state a valid federal claim for relief. For the following reasons, the undersigned recommends respondent's motion be granted.
In 1989, petitioner was convicted of first degree murder and burglary and was sentenced to 25 years to life. Dckt. No. 1 at 1. Following a parole hearing held on March 19, 2008, the Board determined that petitioner was not suitable for parole. Dckt. No. 1 at 29-112. In his petition, petitioner alleged that the Board's decision violated the Ex Post Facto clause, his rights to due process and equal protection, various state laws, and his Sixth Amendment right to a jury. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the undersigned dismissed all of petitioner's claims with the exception of his Sixth Amendment claim. Dckt. No. 6. Respondent now moves to dismiss petitioner's Sixth Amendment claim arguing that it is barred by the statute of limitations and that petitioner has failed to state a federal claim for relief. Dckt. No. 12.
II. Statute of Limitations
The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. section 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.
The statute of limitations for habeas petitions challenging parole suitability hearings is based on section 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, 1082 (9th Cir. 2003). Courts ordinarily deem the factual predicate to have been discovered the day the decision becomes final, i.e., 120 days after the Board finds a petitioner not suitable for parole. See Van Houten v. Davison, No. CV 07-5256, 2009 WL 811596, *5-7 (C.D. Cal. March 26, 2009); Woods v. Salazar, No. CV 07-7197, 2009 WL 2246237, at *2 (C.D. Cal. Mar. 23, 2009); Nelson v. Clark, No. 1:08-cv-0114, 2008 WL 2509509, at *4 (E.D. Cal. June 23, 2008).
When a petitioner properly files a state post-conviction application, the limitations period is tolled and remains tolled for the entire time that application is "pending." 28 U.S.C. § 2244(d)(2). "[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post-conviction application is "pending" during the intervals between a lower court decision and filing a new petition in a higher court. Carey v. Saffold, 536 ...