The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole in 2009. Pending before the court is respondent's motion to dismiss (Doc. 12). In his motion, respondent argued that the petition must be dismissed because: (1) it is untimely; and (2) even if found to be timely, the claims are not cognizable under § 2254.
I. RELEVANT PROCEDURAL BACKGROUND
Petitioner was denied parole on October 13, 2009. On March 25, 2010,
he filed a habeas petition in the California Superior Court
challenging the denial of parole. That petition was denied on June 4,
2010. Petitioner then filed a petition in the California Court of
Appeal on August 12, 2010, which was denied on August 19, 2010.
Finally, petitioner filed a petition with the California Supreme Court
on October 8, 2010, which was denied on April 27, 2011.*fn1
The instant federal petition was signed on February 21, 2012,
and filed with this court on February 24, 2012.
In his federal petition, petitioner claims: (1) the decision denying parole is not supported by sufficient evidence of his current danger to society; (2) the denial of parole resulted in an "illegal sentence of life without the possibility of parole"; and (3) The application of Marsy's Law violates the ex post facto clause.
A. Timeliness of the Petition
Federal habeas corpus petitions must be filed within one year from the later of: (1) the date the state court judgment became final; (2) the date on which an impediment to filing created by state action is removed; (3) the date on which a constitutional right is newly-recognized and made retroactive on collateral review; or (4) the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court judgment becomes final by the conclusion of direct review or expiration of the time to seek direct review. See 28 U.S.C. § 2244(d)(1).
The statute of limitations for habeas petitions challenging the denial of parole is based on § 2244(d)(1)(D), that is, the date on which the factual predicate of the claim or claims could have been discovered through the exercise of due diligence. See Shelby v. Bartlett, 391
F.3d 1061, 1062 (9th Cir. 2004), Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003). In habeas proceedings challenging an administrative decision, courts within the Ninth Circuit, relying on the opinions in Shelby and Redd, have determined that discovery of the factual predicate cannot occur until the administrative decision is final. See Shelby, 391 F.3d at 1065-66; Redd, 343 F.3d at 1084-85; Tafoya v. Subia, 2:07cv2389, 2010 WL 668920 *2-3 (E.D. Cal. Feb. 23, 2010); Webb v. Curry, 2010 WL 235073 (N.D. Cal. Jan. 21, 2010); Van Houten v. Davidson, 2009 WL 811596 (C.D. Cal. March 26, 2009); Wilson v. Sisto, 2008 WL 4218487 (E.D. Cal. Sept. 5, 2008) (citing Nelson v. Clark, 2008 WL 2509509 (E.D. Cal. June 23, 2008)); see also Cal. Code Regs., tit. 15, § 2041(h), Cal. Penal Code § 3041(b) (Board decisions are final 120 days after the hearing).
The limitations period is tolled, however, for the time a properly filed application for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2). To be "properly filed," the application must be authorized by, and in compliance with, state law. See Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 128 S.Ct. 2 (2007); Pace v. DiGuglielmo, 544 U.S. 408 (2005) (holding that, regardless of whether there are exceptions to a state's timeliness bar, time limits for filing a state post-conviction petition are filing conditions and the failure to comply with those time limits precludes a finding that the state petition is properly filed). A state court application for post-conviction relief is "pending"during all the time the petitioner is attempting, through proper use of state court procedures, to present his claims. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). It is not, however, considered "pending" after the state post-conviction process is concluded. See Lawrence v. Florida, 549 U.S. 327 (2007) (holding that federal habeas petition not tolled for time during which certiorari petition to the Supreme Court was pending). Where the petitioner unreasonably delays between state court applications, however, there is no tolling for that period of time. See Carey v. Saffold, 536 U.S. 214 (2002). If the state court does not explicitly deny a post-conviction application as untimely, the federal court must independently determine whether there was undue delay. See id. at 226-27.
Applying these standards to the instant case, the one-year limitations period began to run the day after the denial of parole became final. Here, the decision denying parole became final 120 days after the denial of parole on October 13, 2009, or on February 10, 2010. Thus, the limitations period began to run the following day -- February 11, 2010. The court does not agree with respondent's contention that the limitations period began the day after the denial of parole on October 13, 2009. Respondent ignores Shelby which holds that the factual predicate of the claim cannot be known with certainty until the decision denying parole becomes final, and California Penal Code § 3041(b) which sates that decisions denying parole become final 120 days after the hearing.
By the time petitioner filed his first state court petition in the
California Superior Court on March 25, 2010, 42 days had elapsed since
the commencement of the one-year limitations period.*fn2
Turning to the issue of tolling, the first state court
petition was denied on June 4, 2010, and the second petition was filed
on August 12, 2010 -- 69 days later. The second petition was denied on
August 19, 2010, and the third petition filed on October 8, 2010 -- 50
days later. Respondent contends the 69-day delay between the first and
second state court petitions was unreasonable and, for this reason,
petitioner is not entitled to interval tolling for this period of
time.*fn3 In response, petitioner simply states that
he was "diligently pursuing an accepted collateral process in the
State Court," he does not specify what he did and when to pursue
his rights. The court agrees with respondent that the 69-day delay was
unreasonable and, therefore, does not toll the limitations period. See
Livermore v. Watson, 556 F. Supp. 2d 1112, 1119-20 (E.D. Cal. 2008)
(concluding that 76-day delay was unreasonable).
Following the denial of his final state court habeas case on April 27, 2011, petitioner waited 300 days before signing his federal habeas petition. Adding this time to the unreasonable 69-day delay and the 42 days between the date the denial of parole became final and the date the first state court petition was filed, a ...