Destinni Mardesich v. MATTHEW CATE, Secretary, California Department of Corrections

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 DESTINNI MARDESICH,
Petitioner-Appellant,
v.
MATTHEW CATE*, Secretary,
California Department of
Corrections and Rehabilitation;
SCOTT KERNAN*, Chief Deputy No. 08-55404
Secretary for Adult Operations, D.C. No.California Department of 8:06-cv-00009-  Corrections and Rehabilitation; ODW-AGRTERRI MCDONALD*, Director of
Division of Adult Institutions, OPINION
California Department of
Corrections and Rehabilitation;
DEBORAH K. JOHNSON*, Warden,
Central California Women’s
Facility; KAMALA HARRIS*,
Attorney General,
Respondents-Appellees. 
*Matthew Cate is substituted for his predecessor, Roderick Q. Hickman,
as Secretary for the California Department of Corrections and Rehabilita-
tion; Scott Kernan is substituted for his predecessor, Joseph McGrath, as
Chief Deputy Secretary for Adult Operations for the California Depart-
ment of Corrections and Rehabilitation; Terri McDonald is substituted for
her predecessor, John Dovey, as Director of Division of Adult Institutions
for the California Department of Corrections and Rehabilitation; Deborah
K. Johnson is substituted for her predecessor, Debra Jacquez, as Warden,
Central California Women’s Facility; Kamala Harris is substituted for her
predecessor, Bill Lockyer, as Attorney General of California. See Fed. R.
App. P. 43(c)(2).
1929

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Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
Argued and Submitted
December 5, 2011—Pasadena, California
Filed February 21, 2012
Before: Dorothy W. Nelson, Ronald M. Gould, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
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COUNSEL
Anand Krishnaswamy (argued), Michael J. Brennan, Univer-
sity of Southern California Post-Conviction Justice Project,
Los Angeles, California, for petitioner-appellant Destinni
Mardesich.
Anthony Da Silva, Deputy Attorney General, San Diego, Cal-
ifornia, for respondents-appellees Matthew Cate, Secretary,
California Department of Corrections and Rehabilitation, et
al.
OPINION
IKUTA, Circuit Judge:
Destinni Mardesich appeals the district court’s dismissal of
three claims in her federal habeas petition as untimely under
the one-year statute of limitations set forth in the Antiterro-
rism and Effective Death Penalty Act (AEDPA). 28 U.S.C.
§ 2244(d)(1). Because we apply the AEDPA statute of limita-
tions on a claim-by-claim basis, and because Mardesich’s
three claims challenging a state administrative agency’s order
were filed nearly 18 months after the statute of limitations
expired, we affirm the district court’s dismissal.
I
A
When Destinni Mardesich was 16, she convinced two
friends to help her kill Damian McKenna, her former boy-
friend and father of her child, because she feared McKenna
might try to obtain custody of their young son. Though the
fatal shots were fired by Mardesich’s friend, she was person-
ally armed with a gun and was present during the murder. She
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was tried as an adult in the Orange County Superior Court and
convicted of first degree murder on December 15, 1992. The
court sentenced her to 26 years to life, and committed her to
the California Youth Authority, a state agency providing edu-
cation and treatment to juvenile offenders.1
About three years later, the California Youthful Offender
Parole Board (Board)2 exercised its authority under section
1737.1 of the California Welfare and Institutions Code to
reconsider Mardesich’s commitment to the Youth Authority.3
After conducting three hearings, the Board concluded that
Mardesich was not amenable to treatment and was therefore
an improper person to be retained by the Youth Authority.
Following the last of these hearings on October 25, 1996, the
1The Youth Authority is now known as the “California Department of
Corrections and Rehabilitation, Division of Juvenile Facilities.” See Cal.
Penal Code § 6001.
2In 2005, the Board was abolished and its parole decisionmaking
authority was transferred to the Board of Parole Hearings. See Cal. Welf.
& Inst. Code §§ 1716, 1725.
3Cal. Welf. & Inst. Code § 1737.1 (1996) provided, in pertinent part:
Whenever any person who has been convicted of a public offense
in adult court and committed to and accepted by the Youth
Authority appears to the Youthful Offender Parole Board, either
at the time of his or her first appearance before the board or
thereafter, to be an improper person to be retained by the Youth
Authority, or to be so incorrigible or so incapable of reformation
under the discipline of the Youth Authority as to render his or her
detention detrimental to the interests of the Youth Authority and
the other persons committed thereto, the board may order the
return of such a person to the committing court. The court may
then commit the person to a state prison or sentence him or her
to a county jail as provided by law for punishment of the offense
of which he or she was convicted. The maximum term of impris-
onment for a person committed to a state prison under this sec-
tion shall be a period equal to the maximum term prescribed by
law for the offense of which he or she was convicted less the
period during which he or she was under the control of the Youth
Authority. This section shall not apply to commitments from
juvenile court.
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Board issued an order returning Mardesich to the Orange
County Superior Court for criminal resentencing pursuant to
section 1737.1. The Board’s decision became final when it
denied Mardesich’s administrative appeal of the return order
on August 19, 1997. Following the Board’s order, the Orange
County Superior Court sentenced Mardesich to 26 years to
life in state prison on July 31, 1998.
Mardesich challenged the Board’s return order and the sub-
sequent Orange County resentencing in two separate legal
proceedings. First, on October 15, 1997, Mardesich appealed
the Board’s decision by filing a petition for administrative
mandamus in Ventura County Superior Court. The superior
court denied the petition and after a round of appeals, the
Ventura County Court of Appeals ultimately affirmed the
denial. The California Supreme Court denied review of the
case and that decision became final on August 19, 2003 when
the 90-day period for filing a petition for writ of certiorari to
the United States Supreme Court expired. See Sup. Ct. R.
13.1; People v. Quicke, 455 P.2d 787, 790 (Cal. 1969). Sec-
ond, Mardesich appealed the Orange County Superior Court’s
resentencing decision. This challenge was also unsuccessful.
The Orange County Court of Appeals affirmed the sentence,
and the California Supreme Court denied review of the case
in a decision that became final 90 days later on December 14,
2004.
B
Mardesich petitioned for federal habeas relief under 28
U.S.C. § 2254. On December 13, 2005, the clerk’s office of
the district court for the Central District of California received
Mardesich’s habeas petition, which was then officially filed
on January 3, 2006. Mardesich filed an amended petition on
March 27, 2006. The petition raised four claims.
The first claim asserted that section 1737.1 violates Marde-
sich’s federal and state constitutional due process rights
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because it permits the Board to return a youth offender for
criminal sentencing without giving that ward “constitutionally
adequate notice or [an] opportunity to be heard.” According
to the petition, section 1737.1 allows the Board to return a
ward after administrative proceedings where the ward has,
among other things, no “adequate notice of charges; no right
to counsel; . . . and no right to a meaningful hearing with fair
opportunity for presentation of evidence, cross-examination,
and a neutral adjudicator limited to considering only evidence
presented in the hearing.” In short, claim one alleged that sec-
tion 1737.1 is unconstitutional because it essentially allows
the Board to punish selected wards by “administrative fiat.”
The second claim asserted that section 1737.1 is unconsti-
tutionally vague because a “person reading th[e] statute can-
not determine what specifically is—and is not—a ‘violation’
of Section 1737.1.” Instead, “the statute leaves it up to the
State (here, an administrative agency, the [Board]) to deter-
mine ad hoc what will and will not result in more criminal
punishment, based on standardless discretion.” Thus, claim
two stated that the Board’s “exercise[ of] its unbounded dis-
cretion to return [Mardesich] to Superior Court” was uncon-
stitutional.
The third claim alleged that section 1737.1 is unconstitu-
tionally overbroad because it permits the Board to return a
ward for criminal resentencing “based upon protected First
Amendment activities,” such as peaceful speech and thought.
For example, in Mardesich’s case, the Board’s decision was
in part based upon a “setback in her psychotherapy” that sug-
gested she was “not treatable.” In short, claim three stated that
section 1737.1 is unconstitutional because it allows the Board
to exercise “unbounded discretion in punishing a person based
in part on the content of his or her speech.”
Finally, the fourth claim asserted that the 1998 Orange
County resentencing violated the federal and California dou-
ble jeopardy clauses because it was a “second sentence for the
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same offense.” According to claim 4, “[t]he second sentence
is void” because “the [Orange County] Superior Court had no
power” to impose it in the first place.
The magistrate judge recommended dismissing claims one
through three of Mardesich’s amended habeas petition as
untimely under AEDPA’s one-year statute of limitations.
Though the magistrate found claim four to be timely, she rec-
ommended denying it as not contrary to, or an unreasonable
application of, clearly established Supreme Court law. The
district court adopted the magistrate’s recommendations and
denied Mardesich’s habeas petition. The district court denied
her request for a Certificate of Appealability (COA). Marde-
sich timely appealed and a motions panel of this court granted
a COA with respect to one issue: “whether the district court
properly dismissed claims one, two, and three as time-
barred.”
On appeal, Mardesich asserts that claims one through three
of her December 13, 2005 habeas petition are timely because
the statute of limitations for these claims did not start running
until her appeal of the Orange County resentencing became
final on December 14, 2004. Mardesich argues that claims in
a habeas petition are necessarily challenges to the proceeding
that resulted in the petitioner’s incarceration, and therefore a
court must construe her three claims as challenges to the
Orange County Superior Court’s resentencing that resulted in
her incarceration. California, by contrast, argues that these
three claims challenge the Board’s order returning Mardesich
to superior court for resentencing pursuant to section 1737.1,
which became final at the conclusion of Mardesich’s manda-
mus proceedings on August 19, 2003.
II
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo a district court’s dismissal of a habeas petition
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on timeliness grounds. Porter v. Ollison, 620 F.3d 952, 958
(9th Cir. 2010).
[1] A “person in custody pursuant to the judgment of a
State court” can file a habeas petition alleging that the peti-
tioner “is in custody in violation of the Constitution . . . of the
United States.” 28 U.S.C. § 2254(a). AEDPA contains a one-
year statute of limitations for bringing such petitions, which
provides in relevant part:
(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;
. . . 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.
§ 2244(d)(1). This one-year limitations period is tolled during
the pendency of a “properly filed application for State post-
conviction or other collateral review with respect to the perti-
nent judgment or claim . . . .” § 2244(d)(2).
In order to address the timeliness of Mardesich’s claims on
appeal, we must consider two threshold issues: (1) whether
we apply the one-year statute of limitations to the entire
habeas petition, or to individual claims within the petition,
and (2) whether the claims at issue here are challenges to the
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Board’s return order or to the superior court’s subsequent
resentencing.
[2] We first turn to the question whether we apply the one-
year statute of limitations on a claim-by-claim basis, so that
each claim must survive the time bar, or whether we consider
the habeas petition as a whole, such that all claims in a peti-
tion may proceed so long as at least one of them is timely. As
noted above, the district court applied the claim-by-claim
approach when it dismissed claims one through three of
Mardesich’s habeas petition, but accepted her fourth claim as
timely. Under the second approach, Mardesich’s petition (and
all its claims) would not be time-barred so long as the fourth
claim is timely. We asked for supplemental briefing on this
issue over which our sister circuits have split.4
[3] The AEDPA statute of limitations provides that “[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,” and states that “the limitation
period shall run from the latest of” a number of triggering
dates. § 2244(d)(1). Interpreting this language, the Eleventh
Circuit held that because § 2244(d)(1) declares the limitations
period “shall apply to an application for a writ of habeas cor-
pus,” a court must “look at whether the ‘application’ is timely,
not whether the individual ‘claims’ within the application are
timely.” Walker v. Crosby, 341 F.3d 1240, 1243 (11th Cir.
2003) (emphasis in original). Under this interpretation, anap-
plication is timely so long as one claim within the application
4This issue was not certified on appeal. “Under Ninth Circuit Rule
22-1(e), uncertified issues raised on appeal ‘will be construed as a motion
to expand the COA and will be addressed by the merits panel to such
extent as it deems appropriate.’ ” Towery v. Schriro, 641 F.3d 300, 311
(9th Cir. 2010) (quoting Ninth Cir. R. 22-1(e)). We grant this motion to
expand the COA because, given the split in authority, we hold that “rea-
sonable jurists could debate” whether the existence of one timely claim in
Mardesich’s petition renders her entire petition timely. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
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is timely. Applying this rule, Walker held that a habeas peti-
tion with four untimely claims and one timely claim was a
“timely” petition under AEDPA. Id. at 1242, 1245-46.
[4] In Fielder v. Varner, the Third Circuit rejected this
analysis. 379 F.3d 113, 117-18 (3d Cir. 2004) (Alito, J.).
Instead, it held that AEDPA’s statute of limitations should be
applied to each individual claim in a habeas petition. Id.
According to Fielder, the Walker court’s reliance on the term
“application” in § 2244(d)(1) was misguided because it con-
flicted with the language in § 2244(d)(1)(D), which provides
that the one-year statute of limitations runs from “the date on
which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due dili-
gence.” Id. In Fielder, the petitioner’s application presented
two claims, one involving prosecutorial misconduct at trial
(which was known to the petitioner at the time of trial) and
one involving newly discovered evidence, which was not
known to petitioner until years later. Id. at 118. In this situa-
tion, the Walker interpretation could not provide guidance for
selecting which triggering date starts the one-year statute of
limitations for the entire application because “there is nothing
in § 2244(d)(1) that provides a ground for picking one date
over the other.” Id. The Fielder court reasoned that this
ambiguity was not resolved by § 2244(d)(1)’s instruction that
“[t]he limitation period shall run from the latest of” one of the
four triggering dates in § 2244(d)(1)(A)-(D), because that ref-
erence only “tells a court how to choose from among the four
dates specified in subsections (A) through (D) once those
dates are identified.” Id. (emphasis in original). It “does not
tell a court how to identify the date specified in subsection
(D) in a case in which the application contains multiple
claims.” Id. As a result, Walker’s application-based interpreta-
tion “fail[ed] on its own terms.” Id.
Because the ambiguous language in § 2244(d)(1) did not
provide sufficient guidance, Fielder considered the statute as
a whole, and saw “two strong reasons for concluding that the
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statute of limitations set out in § 2244(d)(1) should be applied
on a claim-by-claim basis.” Id. First, a claim-by-claim
approach was consistent with how statutes of limitations are
generally applied in civil and criminal cases, and there was no
indication that Congress intended to depart from this norm in
AEDPA. Id. at 118-19. Second, such an approach avoided the
strange situation in Walker whereby a “late-accruing federal
habeas claim . . . open[s] the door for the assertion of other
claims that had become time-barred years earlier.” Id. at 120.
[5] The Fielder interpretation was subsequently adopted by
the Sixth Circuit. See Bachman v. Bagley, 487 F.3d 979, 984
(6th Cir. 2007). And we likewise adopted Fielder’s approach
in a case that was later vacated on other grounds. See Souli-
otes v. Evans, 622 F.3d 1173, 1179-80 (9th Cir. 2010),
vacated by Souliotes v. Evans, 654 F.3d 902 (9th Cir. 2011).
Souliotes evaluated a habeas petition that included one claim
that the petitioner was actually innocent, based on evidence
discovered some eight months before the petition was filed,
and three claims challenging the underlying conviction that
had become final over a year before the petition was filed.
622 F.3d at 1176, 1179. The district court dismissed the entire
petition as time-barred. Id. at 1177. On appeal, we endorsed
the reasoning in Fielder. Id. at 1180.5 Further, we noted that
a claim-by-claim approach was consistent with Supreme
Court dicta in Pace v. DiGuglielmo, 544 U.S. 408, 416 n.6
(2005), which suggested that § 2244(d)(1)(B)-(D) “require[d]
claim-by-claim consideration.” Souliotes, 622 F.3d at 1180
n.4. Applying this approach, we reversed the dismissal of
Souliotes’s claim based on newly discovered evidence, but
5Souliotes was not vacated because of any controversy regarding this
holding, but because it relied on another Ninth Circuit case (that was later
reversed en banc) to hold that there was no “actual innocence” exception
to AEPDA’s statute of limitations for original petitions under
§ 2244(d)(1). Id. at 1181 (citing Lee v. Lampert, 610 F.3d 1125 (9th Cir.
2010), vacated and reversed en banc by Lee v. Lampert, 653 F.3d 929 (9th
Cir. 2011) (en banc)).
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affirmed the holding that his other three claims were
untimely. Id. at 1180-82.
[6] We are persuaded by the reasoning in Fielder, just as
we were in Souliotes. Stretched to its logical extreme, Walk-
er’s application-based approach would hold that AEDPA’s
statute of limitations never completely runs on any claim so
long as there is a possibility of a timely challenge for one
claim. There is no evidence that Congress intended such a
result when it placed a time bar on habeas petitions by enact-
ing a one-year statute of limitations. See Duncan v. Walker,
533 U.S. 167, 179 (2001) (“The 1-year limitation period of
§ 2244(d)(1) quite plainly serves the well-recognized interest
in the finality of state court judgments.”).
[7] In her supplemental briefing, Mardesich echoes the
arguments made in Walker. According to Mardesich, the plain
text of § 2244(d)(1) unambiguously states that the limitations
period shall be applied to “applications” and if Congress had
intended for the limitations to be applied to claims, it would
have said so. We reject this argument because, as shown
above, it cannot properly resolve the ambiguity in
§ 2244(d)(1)(D). Therefore, we hold that AEDPA’s one-year
statute of limitations in § 2244(d)(1) applies to each claim in
a habeas application on an individual basis.
III
[8] We now turn to our second threshold issue: whether
Mardesich’s three claims on appeal are challenging the
Board’s order under section 1737.1 returning her to the supe-
rior court for resentencing or the subsequent state court resen-
tencing judgment.
A
We begin by briefly outlining the background legal princi-
ples. Although petitioners must be in “custody pursuant to a
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state court judgment” in order to bring a habeas petition under
§ 2254, they are not limited to challenging the specific judg-
ment of conviction and sentence that resulted in their state
custody. See Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir.
2004). Rather, petitioners can also challenge “the fact or dura-
tion of [their] confinement” based “upon the alleged unconsti-
tutionality of state administrative action.” Preiser v.
Rodriguez, 411 U.S. 475, 489 (1973). The Supreme Court has
indicated that such challenges to administrative actions are
cognizable in habeas if their success “would necessarily dem-
onstrate the invalidity of confinement or its duration,” such as
through obtaining an “injunction compelling speedier release
or . . . through a judicial determination that necessarily
implies the unlawfulness of the State’s custody.” Wilkinson v.
Dotson, 544 U.S. 74, 81, 82 (2005).
We have held that the one-year limitations period applies
to “all applications for writ of habeas corpus” under § 2254,
including those challenging state administrative actions.
Shelby, 391 F.3d at 1064; Redd v. McGrath, 343 F.3d 1077,
1084 (9th Cir. 2003). In Redd, we established the mechanics
for courts applying the limitations period to such petitions.
Redd, 343 F.3d at 1081-85. Redd involved a habeas petition
challenging a denial of parole. Id. at 1079. In determining
whether the statute of limitations barred Redd’s claims, we
considered whether the applicable triggering date under
§ 2244(d)(1) was (1) § 2241(d)(1)(A), which provides that the
statute of limitations begins to run on “the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review,” or (2)
§ 2241(d)(1)(D), which provides that the statute of limitations
begins to run on “the date on which the factual predicate of
the claim or claims presented could have been discovered
through the exercise of due diligence.” Id. at 1081-82. We
concluded that subparagraph (D), rather than (A), was appli-
cable because an administrative decision, such as the denial
of parole in Redd, is not a “judgment” as defined in subpara-
graph (A). Id. Therefore, by its plain language, subparagraph
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(A) is not applicable to petitions challenging an administrative
decision. Applying subparagraph (D), we held that the factual
predicate for Redd’s claim was the parole board’s denial of
his administrative appeal and that the statute of limitations
began running the next day. Id. at 1082-84; see also Shelby,
391 F.3d at 1062, 1066.
[9] Therefore, under Redd and Shelby, when a habeas peti-
tioner challenges an administrative decision affecting the
“fact or duration of his confinement,” AEDPA’s one-year
statute of limitations runs from when the “factual predicate”
of the habeas claims “could have been discovered through the
exercise of due diligence.” § 2244(d)(1)(D); see Shelby, 391
F.3d at 1066.6 As a general rule, the state agency’s denial of
an administrative appeal is the “factual predicate” for such
habeas claims. See Shelby, 391 F.3d at 1066; Redd, 343 F.3d
at 1085.
B
We now review Mardesich’s three claims on appeal. As
previously noted, see supra at 1935-36, the first three claims
in Mardesich’s habeas petition challenge the constitutionality
of section 1737.1, the statute authorizing the Board to order
her return to superior court for resentencing, as well as the
Board’s exercise of its power under that provision.7 Claim one
6Several of our sister circuits have reached similar conclusions on this
issue. See Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008); Dul-
worth v. Evans, 442 F.3d 1265, 1268 (10th Cir. 2006); Cook v. N.Y. State
Division of Parole, 321 F.3d 274, 280-81 (2d Cir. 2003); Kimbrell v.
Cockrell, 311 F.3d 361, 363-64 (5th Cir. 2002) (using administrative deci-
sion itself as the factual predicate, but noting that a properly filed adminis-
trative appeal would toll the statute of limitations); but see Cox v.
McBride, 279 F.3d 492, 493 (7th Cir. 2002) (holding that AEDPA’s stat-
ute of limitations does not apply to petitions challenging administrative
decisions).
7As noted above, the pertinent language in section 1737.1 provides that
whenever a ward “appears to the [Board] . . . to be an improper person to
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asserts that section 1737.1 deprived Mardesich of due process
because it allowed the Board to order her return without giv-
ing her procedural safeguards such as notice of charges or the
right to counsel. Claims two and three allege that section
1737.1 is void for vagueness and unconstitutionally over-
broad, respectively, because it gave the Board unbounded dis-
cretion in making its decision to order her return. By contrast,
the fourth claim contends that the superior court’s resentenc-
ing procedure was unconstitutional because it violated double
jeopardy.
[10] We conclude that the first three claims in Mardesich’s
federal habeas petition asserted constitutional infirmities in
the Board’s decision, not the state superior court’s. As we
have recognized, the issuance of the return order is entirely
“in the discretion of the [Board], whose authority is ‘separate
and distinct from that of the sentencing judge.’ ” Torrey v.
Estelle, 842 F.2d 234, 236 (9th Cir. 1988) (quoting Sanchez
v. United States, 572 F.2d 210, 211 (9th Cir. 1977)). Thus,
while the Board’s return order under section 1737.1 may be
a precursor to the subsequent state court resentencing, it is an
administrative decision “in which the sentencing court does
not participate.” Id. at 236 n.2. California courts have simi-
larly recognized that section 1737.1 gives the Board exclusive
authority to determine whether or not to retain a ward com-
mitted to its authority. See People v. Lo, 49 Cal. Rptr. 2d 594,
600-01 (Cal. Ct. App. 1996); cf. Owen E. v. West (In re Owen
E.), 592 P.2d 720, 723 (Cal. 1979) (analogizing the Board’s
role to that of a parole board for youth wards). As such, the
Board’s order returning Mardesich to superior court because
she was not amenable to treatment and the superior court’s
be retained by the Youth Authority, or to be so incorrigible or so incapable
of reformation under the discipline of the Youth Authority as to render his
or her detention detrimental to the interests of the Youth Authority and the
other persons committed thereto, the [B]oard may order the return of such
a person to the committing court.”
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subsequent resentencing proceeding are two independent state
actions that are separately challengeable via federal habeas
petitions. Given this distinct allocation of authority, Marde-
sich’s three claims challenging the scheme in section 1737.1
are allegations that the Board, not the resentencing court, vio-
lated her constitutional rights.
[11] Mardesich’s constitutional challenges to the Board’s
decision are cognizable in habeas. Each of the three claims
challenges the “fact or duration” of her incarceration based
“upon the alleged unconstitutionality” of the Board’s action.
Preiser, 411 U.S. at 489. Here, as in Shelby and Redd, success
on these claims “would necessarily demonstrate the invalidity
of confinement or its duration” because the Board’s return
order led directly to Mardesich’s subsequent criminal resen-
tencing and incarceration. Wilkinson, 544 U.S. at 82. There-
fore, the one-year limitations period for challenging this
administrative action is governed by § 2244(d)(1)(D), and is
triggered by the “date on which the factual predicate of the
claim or claims presented could have been discovered through
the exercise of due diligence.”
[12] Given this conclusion, and mindful that we apply the
AEDPA statute of limitations on a claim-by-claim basis, see
supra at Part II, we hold that Mardesich’s claims that chal-
lenge the Board’s order returning her to superior court for
resentencing are not timely. As previously explained, the
“factual predicate” for these claims is the state agency’s
denial of the petitioner’s administrative appeal. See Shelby,
391 F.3d at 1066; Redd, 343 F.3d at 1082. Here, the Board
denied Mardesich’s administrative appeal on August 19,
1997. The limitations period began running on the next day,
see Redd, 343 F.3d at 1082, and a total of 56 days then passed
before Mardesich collaterally challenged the decision by fil-
ing for administrative mandamus, see id. at 1082-85 (running
the limitations period during this time before petitioner sought
state review of the administrative order). The limitations
period was then tolled between October 15, 1997 and August
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19, 2003, during the pendency of Mardesich’s petition for
administrative mandamus. See § 2244(d)(2). The limitations
period resumed on August 20, 2003, and expired 309 days
later, on June 24, 2004.8 Accordingly, the claims challenging
the Board’s return order in Mardesich’s December 13, 2005
habeas petition were untimely by nearly 18 months.9
Mardesich argues that claims one through three of her
habeas petition necessarily challenge her 1998 Orange County
resentencing because she is in custody pursuant to that state
court judgment. We reject this argument. As Shelby made
clear, “we ask whether the petitioner is in custody pursuant to
a state court judgment” because such custody is a prerequisite
to the filing of a habeas petition under § 2254. Shelby, 391
F.3d at 1063 (internal quotation marks and citation omitted);
see also White v. Lambert, 370 F.3d 1002, 1007 (9th Cir.
2004) (holding that Ҥ 2254 is the exclusive vehicle for a
habeas petition by a state prisoner in custody pursuant to a
state court judgment, even when the petitioner is not challeng-
ing his underlying state court conviction”), overruled on other
grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir.
2010). But once a petitioner has made this threshold showing
of custody pursuant to a state court judgment, the petitioner
is not limited to challenging that state court judgment. In fact,
the very nature of habeas petitions challenging administrative
decisions is such that a prisoner is in custody pursuant to a
state court conviction and sentence, but alleges that an
entirely different state administrative action violated his con-
stitutional rights. See, e.g., Shelby, 391 F.3d at 1062-64; Redd,
343 F.3d at 1079.
8This date is 56 days earlier than the date arrived at by the district court,
August 19, 2004, because the district court did not count the 56 days
between the denial of administrative appeal and Mardesich’s mandamus
filing. Under Redd, a court must count these days. 343 F.3d at 1082-85.
9Because we hold that Mardesich’s claims on appeal are untimely on
this basis, we need not address her argument that claims challenging the
Orange County Superior Court’s resentencing judgment would have been
timely.
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[13] Such is the case here. Mardesich properly filed her
habeas petition under § 2254 because she is in custody pursu-
ant to the Orange County Superior Court’s resentencing judg-
ment. See Burton v. Stewart, 549 U.S. 147, 156-57 (2007)
(holding that a sentencing qualifies as a state court “judg-
ment”). But instead of challenging that judgment, her claims
on appeal alleged that the Board violated her constitutional
rights when it returned her to superior court for sentencing.
As shown above, those claims are stale and must be dis-
missed.
IV
Because the limitations period for the administrative action
Mardesich challenges in claims one through three of her
habeas petition expired nearly 18 months before the petition
was filed, the district court’s dismissal of those claims as
untimely is AFFIRMED.
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