Manuel Parejo v. Scott Frakes , 491 F. App'x 847 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 04 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MANUEL PAREJO, No. 11-35374
Petitioner-Appellant, D.C. No. 3:10-cv-05764-RBL
v. MEMORANDUM *
SCOTT FRAKES,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted November 6, 2012
Seattle, Washington
Before: W. FLETCHER and FISHER, Circuit Judges, and DEARIE, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Raymond J. Dearie, United States District Judge for
the Eastern District of New York, sitting by designation.
Appellant Manuel Parejo appeals the district court’s order dismissing as
time-barred his petition for a writ of habeas corpus under 28 U.S.C. § 2254.
Reviewing the order de novo, Redd v. McGrath, 343 F.3d 1077, 1080 (9th Cir.
2003), we hold that the petition was timely and reverse.
In determining that Parejo was aware of the “factual predicate” of his habeas
claims as early as 1995, the district court misconstrued the applicable section of the
habeas limitations statute, 28 U.S.C. § 2244(d)(1)(D). Under this court’s decision
in Shelby v. Bartlett, 391 F.3d 1061 (9th Cir. 2004), which was based on Redd and
reaffirmed in Mardesich v. Cate, 668 F.3d 1164 (9th Cir. 2012), when, as here, a
habeas petition challenges an administrative decision rather than the underlying
judgment of conviction, the “factual predicate” under section 2244(d)(1)(D)
triggering the one-year limitations period is ordinarily the administrative decision.
See Mardesich, 668 F.3d at 1171-72; Shelby, 391 F.3d at 1062-66; Redd, 343 F.3d
at 1081-85. We find no reason for departing from that framework here.
We further conclude that the administrative decision the petition challenges
is the then-latest denial of parole, issued by the Indeterminate Sentence Review
Board on December 27, 2007. Respondent conceded at oral argument and we now
hold that so construed, the petition is timely under Redd and Shelby.
REVERSED and REMANDED.