The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition pursuant to 28 U.S.C. § 2254. Petitioner challenges his May 20, 2010 prison disciplinary conviction for possession of alcohol, for which he was assessed a 120-day credit loss. Petitioner presents the following grounds for relief: (1) he was unable to collect or obtain evidence in support of his defense or to question any witnesses; (2) critical evidence was disposed of and not tested properly; (3) there were no witnesses or an investigative employee (IE) present at the hearing; (4) petitioner was charged with the wrong violation; (5) he was assessed 120 days' credit forfeiture despite the Senior Hearing Officer having stated it would be 91 days; (6) petitioner was not provided the investigative employee's report 24 hours before the hearing. First Amended Petition (ECF No. 11), pp. 1, 4-6.
Respondent moves for dismissal of the amended petition, contending that it was filed beyond the AEDPA one-year statutory limitation period and that many of the asserted grounds for relief are state law claims that are not cognizable in federal habeas. Motion to Dismiss (MTD) (ECF No. 16), pp. 1-5.
The applicable statute of limitations 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.
The provisions of § 2244(d)(1)(D), rather than § 2244(d)(1)(A), apply to habeas corpus actions challenging decisions of administrative bodies, including challenges to prison disciplinary proceedings. Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004); Redd v. McGrath, 343 F.3d 1077, 1084 (9th Cir. 2003). In such cases, the limitation period begins when the petitioner receives notice of denial of the final administrative appeal from the administrative decision at issue. Id.; see also, Mardesich v. Cate, 668 F.3d 1164, 1172 (9th Cir. 2012) (generally, state agency's denial of an administrative appeal constitutes the "factual predicate" for habeas claims challenging state administrative actions affecting "fact or duration of . . . confinement").
The statutory limitations period is tolled during the pendency of properly filed state petitions for collateral review, see 28 U.S.C. § 2244(d)(2), and for reasonable intervals between the filing of petitions at succeeding levels of state review while a petitioner is exhausting state remedies. See Carey v. Saffold, 536 U.S. 214 (2002); Evans v. Chavis, 546 U.S. 189, 193-194, 198 (2006).
In this case, petitioner's administrative appeal was denied at the third and final level on September 30, 2010. The statute began to run the following day, on October 1, 2010. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir.2001). Twenty four days later, on October 25, 2010,*fn1 petitioner filed a petition in the San Joaquin County Superior Court. That petition was denied on December 10, 2010. Petitioner submitted his petition to the Third District Court of Appeal on December 29, 2010, which was denied on January 13, 2011. Petitioner filed his habeas petition in the California Supreme Court on February 2, 2011. It was denied on March 16, 2011. MTD, respondent's Exhibits (Exs.) 1-5. Respondent does not contend that any of these petitions were "improperly filed." The intervals between petitions were quite brief. The undersigned concludes that AEDPA's statute of limitations was continuously tolled from October 25, 2010 through March 16, 2011. See 28 U.S.C. § 2244(d)(2); Carey, 536 U.S. at 223.
The instant case was opened when petitioner filed his initial federal petition dated November 29, 2011. At that time, 281 days of the limitations period had elapsed: 24 days between October 1, 2011 and October 25, 2011, and 257 days between March 16, 2011 and November 29, 2011. Accordingly, the initial petition was timely filed.
Respondent argues that the amended petition, filed April 2, 2012, must nonetheless be dismissed as untimely because it was submitted outside the limitations period. Respondent contends that the previous timely filing of the original petition is not relevant to the timeliness analysis, because filing of a federal petition does not toll the limitations period. While it is indisputable that pendency of a federal petition does not toll the statute of limitations, Duncan v. Walker, 533 U.S. 167 (2001), that principle has no application here. The November 2011 petition initiated the instant action, which has been pending since. As explained ...