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-AGR TERRI 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 Rehabilitation; Scott Kernan is substituted for his predecessor, Joseph McGrath, as

Chief Deputy Secretary for Adult Operations for the California Department 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
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

1930 MARDESICH v. CATE
COUNSEL

Anand Krishnaswamy (argued), Michael J. Brennan, University of Southern California Post-Conviction Justice Project,

Los Angeles, California, for petitioner-appellant Destinni

Mardesich.

Anthony Da Silva, Deputy Attorney General, San Diego, California, 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 Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C.

§ 2244(d)(1). Because we apply the AEDPA statute of limitations 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 boyfriend 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 personally armed with a gun and was present during the murder. She

MARDESICH v. CATE 1933
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 education 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. 

2

In 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 imprisonment for a person committed to a state prison under this section 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. 

1934 MARDESICH v. CATE
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 subsequent 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). Second, 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 Mardesich’s federal and state constitutional due process rights

MARDESICH v. CATE 1935
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 section 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 unconstitutionally vague because a “person reading th[e] statute cannot 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 determine 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 discretion to return [Mardesich] to Superior Court” was unconstitutional.

The third claim alleged that section 1737.1 is unconstitutionally 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 suggested 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 double jeopardy clauses because it was a “second sentence for the

1936 MARDESICH v. CATE
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 recommended 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). Mardesich 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 timebarred.”

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 mandamus 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

MARDESICH v. CATE 1937
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 petitioner “is in custody in violation of the Constitution . . . of the

United States.” 28 U.S.C. § 2254(a). AEDPA contains a oneyear 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 postconviction or other collateral review with respect to the pertinent 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

1938 MARDESICH v. CATE
Board’s return order or to the superior court’s subsequent

resentencing.

[2] We first turn to the question whether we apply the oneyear 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 petition 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 corpus,” 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, anapplication 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 “reasonable 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). 

MARDESICH v. CATE 1939
is timely. Applying this rule, Walker held that a habeas petition 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 conflicted 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 diligence.” 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 situation, 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 reference 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 interpretation “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

1940 MARDESICH v. CATE
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 Souliotes 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

5

Souliotes 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)). 

MARDESICH v. CATE 1941
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, Walker’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 enacting 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 superior court for resentencing or the subsequent state court resentencing judgment.

A

We begin by briefly outlining the background legal principles. Although petitioners must be in “custody pursuant to a

1942 MARDESICH v. CATE
state court judgment” in order to bring a habeas petition under

§ 2254, they are not limited to challenging the specific judgment 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 duration of [their] confinement” based “upon the alleged unconstitutionality 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 demonstrate 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 applicable because an administrative decision, such as the denial

of parole in Redd, is not a “judgment” as defined in subparagraph (A). Id. Therefore, by its plain language, subparagraph

MARDESICH v. CATE 1943
(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 petitioner 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); Dulworth 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 decision itself as the factual predicate, but noting that a properly filed administrative appeal would toll the statute of limitations); but see Cox v.

McBride, 279 F.3d 492, 493 (7th Cir. 2002) (holding that AEDPA’s statute 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

1944 MARDESICH v. CATE
asserts that section 1737.1 deprived Mardesich of due process

because it allowed the Board to order her return without giving 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 overbroad, respectively, because it gave the Board unbounded discretion in making its decision to order her return. By contrast,

the fourth claim contends that the superior court’s resentencing 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 similarly recognized that section 1737.1 gives the Board exclusive

authority to determine whether or not to retain a ward committed 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.” 

MARDESICH v. CATE 1945
subsequent resentencing proceeding are two independent state

actions that are separately challengeable via federal habeas

petitions. Given this distinct allocation of authority, Mardesich’s three claims challenging the scheme in section 1737.1

are allegations that the Board, not the resentencing court, violated 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 resentencing and incarceration. Wilkinson, 544 U.S. at 82. Therefore, 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 challenge 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 filing 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

1946 MARDESICH v. CATE
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 “§ 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 challenging 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 constitutional 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. 

MARDESICH v. CATE 1947
[13] Such is the case here. Mardesich properly filed her

habeas petition under § 2254 because she is in custody pursuant to the Orange County Superior Court’s resentencing judgment. See Burton v. Stewart, 549 U.S. 147, 156-57 (2007)

(holding that a sentencing qualifies as a state court “judgment”). 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 dismissed.

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. 

1948 MARDESICH v. CATE