ORDER: (1) ADOPTING IN PART AND DECLINING TO ADOPT IN PART THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, (Doc. No. 31): (2) OVERRULING IN PART AND SUSTAINING IN PART RESPONDENT'S OBJECTIONS, (Doc. No. 32); (3) DENYING RESPONDENT'S MOTION TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS (Doc. No. 13); and (4) DIRECTING RESPONDENT TO FILE AN ANSWER NO LATER THAN 30 DAYS FROM THE DATE OF THIS ORDER.
ANTHONY J. BATTAGLIA, District Judge.
Petitioner Javier Raygosa, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1) Petitioner does not challenge his underlying conviction. Instead, Petitioner challenges the California Department of Corrections and Rehabilitation ("CDCR") finding that he is guilty of a rule violation. (Doc. No. 10). Respondent moved to dismiss, arguing the petition was time-barred pursuant to 28 U.S.C. § 2244(d). On June 26, 2013, Magistrate Judge Mitchell Dembin filed a Report and Recommendation ("R&R"), recommending this Court deny Respondent's motion to dismiss. (Doc. No. 31.) On July 10, 2013, Respondent filed an Objection to the R&R. (Doc. No. 32.) The Objection to the R&R advanced a new theory for finding the habeas petition untimely, which this Court considered after allowing Petitioner an opportunity to respond. The issue of the Petition's untimeliness and any applicable equitable tolling has now been fully briefed by the Parties, and after due consideration, the Court hereby DENIES Respondent's motion to dismiss for the following reasons.
Petitioner is currently serving an indeterminate sentence of seventeen to life for second-degree murder with a firearm enhancement. On July 19, 2009, Anabelina Bermudez-Carillo visited Petitioner at Calpatria State Prison. (Doc. No. 10 at 50.) During the visit, Ms. Carillo kissed Petitioner on the mouth. ( Id. ) It appeared to a guard that Ms. Carillo passed an unknown object into Petitioner's mouth during the kiss. A guard searched Petitioner and claimed to find a leafy green material in his mouth. ( Id. at 51.) After consenting to a search, Ms. Carillo admitted to having multiple "bindles" of marijuana "secreted" in her vagina. (Id. at 50.) Petitioner was charged with "distribution of a controlled substance/introduction of a C/S" and was found guilty of the rules violation. ( Id. at 49.) Petitioner disputes this finding.
On November 11, 2009, Petitioner filed an inmate appeal which was denied. (Doc. No. 10 at 35.) On December 15, 2009, Petitioner's second level appeal was denied. ( Id. at 38-39.) On April 1, 2010, Petitioner's Director's Level Appeal was denied. (Doc. No. 1 at 9.)
After exhausting his administrative remedies, Petitioner filed a petition for writ of habeas corpus in Imperial County Superior Court on July 14, 2010. (Doc. No. 10, Ex. I.) On August 19, 2010, the petition was denied as the Superior Court found the decision of the hearing officer to be supported by "some evidence." ( Id. ) (citing In re Zepeda, 141 Cal.App.4th 1493, 1500 (Cal.Ct.App. 2006)). On October 1, 2010, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, which was denied on November 24, 2010. ( See Doc. No. 13.) On February 17, 2011, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court, which was denied on August 10, 2011. ( Id. ; Doc. No. 10, Ex. I.)
On March 12, 2012, Petitioner filed the original federal petition. (Doc. No. 1.) On March 15, 2012, the Court dismissed the Petition without prejudice for failure to name a proper respondent. (Doc. No. 2.) On July 23, 2012, Petitioner filed the First Amended Petition ("FAP"). (Doc. No. 10.) Petitioner contends that his due process rights were violated because there was insufficient evidence to support the CDCR rule violation finding. ( Id. ) On October 5, 2012, Respondent moved to dismiss the Petition as untimely. (Doc. No. 13.) This matter was referred to Magistrate Judge Dembin, who issued a R&R on June 26, 2013. The R&R recommended this Court deny Respondent's Motion to Dismiss as Judge Dembin found the petition timely based solely on the availability of statutory tolling. (Doc. No. 31 at 9).
Respondent objects to Magistrate Judge Dembin's finding that the FAP relates back to the original Petition for statute of limitation purposes. Moreover, Respondent presented a new argument supporting the contention that the habeas petition was untimely. In the interest of judicial economy, the Court exercised its discretion to consider the new argument and granted Petitioner the opportunity to file supplemental briefing addressing the new claim. (Doc. No. 37.) After granting Petitioner's request for an extension of time, Petitioner timely filed his supplemental briefing on December 4, 2013. (Doc. No. 42.) As the Court's decision to entertain Respondent's new argument necessarily affects the entirety of Judge Dembin's analysis and conclusion, the Court will independently address Petitioner's arguments, contained in his opposition to dismiss, that he is entitled to statutory and equitable tolling. (Doc. No. 27 at 4.)
II. LEGAL STANDARD
A. Review of the Report and Recommendation
Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) provide a district judge's duties regarding a magistrate judge's report and recommendation. The district judge should "make a de novo determination of those portions of the report to which the objection is made, " and "may accept, reject, or modify in whole or in part, the finding or recommenda-tions made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). In the absence of timely objections, the Court need only find there is no clear error on the face of the record in order to accept the report and recommendation. See Fed.R.Civ.P. 72(b), Advisory Committee Notes (1983); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
B. Statute of Limitations
Habeas petitions filed by state prisoners in federal court are governed by a one-year limitations period. 28 U.S.C. § 2244(d)(1). Section (d)(1) states that 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 ...