The opinion of the court was delivered by: Maxine Chesney, District Judge
ORDER GRANTING MOTION TO DISMISS PETITION
Deandre Moore, a California prisoner, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed a motion to dismiss the petition as untimely. Petitioner filed opposition, to which respondent replied. Thereafter, petitioner filed a supplemental opposition, and respondent filed a supplemental reply.
On January 1, 1994, in San Mateo County Superior Court, petitioner was sentenced to a term of life in state prison without parole, after a jury found him of first degree murder, two counts of robbery, and vehicle theft. The California of Appeal affirmed on September 24, 1996, and the Supreme Court of California petitioner's petition for direct review on January 15, 1997. Petitioner indicates did not file a habeas petition in state court. A prior habeas petition in federal Page 2 court was dismissed without prejudice on March 27, 1998. See Moore v. Galaza. No. 98-169 MMC (PR).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became law on April 24, 1996, and imposed for the first time a statute of limitation on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1).
The one-year period generally will run from "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Here, the state courts' direct review of petitioner's conviction and sentence ended on January 15, 1997, with the denial by the California Supreme Court. However, under 28 U.S.C. § 2244(d)(1)(A), the "time for seeking" direct review includes the ninety-day period within which a petitioner can file a petition for a writ of certiorari with the United States Supreme Court under Supreme Court Rule 13, whether or not the petitioner actually files such a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). As a result, petitioner's "time for seeking" direct review expired, and the limitations period for filing a federal habeas petition began, on April 15, 1997. The limitations period thus expired one year later, on April 15, 1998. The instant petition was filed on October 17, 2002, approximately four and a half years after the limitations period expired.
The running of the one-year limitations period is tolled for the time period during Page 3 which a properly filed application for post-conviction or other collateral review is pending in state court. See id. 28 U.S.C. § 2244(d)(2). An application for collateral review is "pending" in state court for "`all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.'" Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (quoting Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999)). Petitioner indicates in his petition, and does not dispute respondent's assertion, that he filed no applications for post-conviction or other collateral review in the state courts.*fn1 Accordingly, tolling is not available to petitioner under 28 U.S.C. § 2244(d)(2).
Petitioner argues that he is entitled to equitable tolling because the law library at Corcoran State Prison ("Corcoran"), where he has been incarcerated since 1995, did not have the AEDPA or the statute of limitations provision in 28 U.S.C. § 2244(b). Equitable tolling requires a showing that extraordinary circumstances beyond petitioner's control prevented him from timely filing his petition. Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998). In Whalem/Hunt v. Early, 233 F.3d 1146, 1147-48 (9th Cir. 2000) (en banc), the petitioner claimed that the prison law library did not have materials setting forth the limitations period in the AEDPA. The Ninth Circuit reversed the dismissal of the petition as untimely because the record did not establish that "there are no circumstances consistent with petitioner's petition and declaration under which he would be entitled to a finding of an `impediment' under § 2244(c)(1)(B) or to equitable tolling." Id. at 1149. The court remanded for a factual determination as to whether the AEDPA materials were available to petitioner more than a year before he filed his habeas petition. Id.
Here, petitioner states in his opposition that Corcoran did not make the AEDPA Page 4 and, in particular, the provision establishing a statute of limitations for federal habeas petitions, available to inmates until after November 2001. Petitioner bears the burden of showing that equitable tolling is applicable to him. See Miranda v. Castro. 292 F.3d 1063, 1065 (9th Cir. 2002). Because petitioner did not include a declaration or other evidence in support of his argument, the Court, by order filed May 28, 2003, granted him the opportunity to file a supplemental opposition. In that order, the Court explained to petitioner that he would have to submit "a sworn declaration or other competent evidence setting forth specific facts showing when the AEDPA became available to him as an inmate at Corcoran, including the facts on which any declarant bases an assertion that the AEDPA was not available before a particular date."
Petitioner has filed a supplemental opposition with a short declaration in which he states that prison officials "did not provide me with a copy" of the AEDPA between April 15, 1997 and April 15, 1998. At best, this statement provides a basis for equitable tolling only until April 15, 1998. As the instant petition was not filed until October 17, 2002, over four years later, the petition would still be untimely. Petitioner further states that prison officials "did not make the AEDPA accessible to inmates" and that it was "not in the law library for me to become aware of the law." Finally, petitioner states, "I became aware of the AEDPA and it was made available to me in 2001." These statements likewise are insufficient. First, petitioner does not specify when in 2001 the materials became available to him. If they became available to him on a date earlier than October 17, 2001, more than a year would have elapsed before he filed the instant petition, rendering it untimely. Second, in making these statements, petitioner did not follow the instructions set forth in the Court's order for supplemental briefing, in that petitioner does not set forth any specific facts explaining the basis for his assertion that the AEDPA was not available. He does not state, for example, that he went to the law library during this time, read 28 U.S.C. § 2244 or 2254, or requested any legal materials regarding the filing of federal habeas petitions.
Respondent has provided competent evidence from which a reasonable inference Page 5 can be drawn that the AEDPA was available in the law library before 1998. Specifically, respondent has filed a declaration by James Tucker, a Corcoran librarian, stating that library records indicate that Corcoran received the 1997 pocket part including the AEDPA on April 12, 1997; the declaration of a supervisor of the educational program at Corcoran, Gary Goddard, stating that it is "the custom and habit" of Corcoran to make all newly received materials available "within approximately two weeks of arrival"; and the declaration from a Library Technician, D. Nunes, stating that it was her duty in 1997 to place the pocket parts in the hard bound volumes of the United States Code. Nunes concedes that there can be delays due to prison lockdowns, but states that any pocket part received in April 1997 would have been placed in the bound volume no later than the end of 1997. The fact that petitioner was unaware of the AEDPA until 2001 does not mean that the AEDPA was not available to him in the law library before that time. Moreover, petitioner's failure to provide a factual basis for his conclusory statement that the AEDPA was "not available" before 2001 leaves respondent's evidence that it was available in the law library by the end of 1997 unrefuted.
Petitioner also attaches a copy of an unpublished order issued in Edinbyrd v. Ortiz, a case heard in the Central District of California. In that order, the court found that the petition could not be dismissed as untimely because there "may be" equitable tolling based on the unavailability of the AEDPA at Corcoran. The court made no finding, however, that the AEDPA was not in fact in the Corcoran library or was otherwise unavailable at Corcoran before any particular date; rather, the court simply found that respondent, who had not presented all of the declarations presented herein, had failed to make a sufficient showing as to when the AEDPA was made available once it had been received. Therefore, the decision in Edinbyrd does not provide a factual basis for equitable tolling in this case.
In sum, petitioner has failed to provide any evidence to support his claim that the AEDPA was not available to him until less than a year before he filed his federal petition. Moreover, respondent has presented evidence that the AEDPA was in fact available in the Page 6 Corcoran law library in 1997, over four years before the instant petition was filed. As a result, there is no basis for equitable tolling of the limitations period until ...