The opinion of the court was delivered by: Claudia Wilken United States District Judge
In response to the Court's Order to Show Cause, Respondent filed a motion to dismiss Petitioner's habeas petition as untimely. Petitioner opposed the motion and Respondent filed a reply. In an Order dated March 25, 2003, the Court denied the motion without prejudice and directed Petitioner to produce evidence that his petition was timely filed. Because the evidence presented by Petitioner does not establish that the petition was timely filed, the petition is dismissed as untimely.
On June 10, 1998, Petitioner was convicted of carjacking pursuant to a plea agreement and was sentenced to eighteen years in State prison. He did not file a direct appeal. On about October 24, 2001, he filed a petition for a writ of habeas corpus in the California Supreme Court. The petition was denied summarily on February 27, 2002, and that denial became final thirty days later, on March 29, 2002. On March 13, 2002, Petitioner filed a habeas petition in superior court, which was denied on the merits on March 27, 2002. Petitioner filed his federal petition on June 11, 2002.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on April 24, 1996, imposed a statute of limitations 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 running of the limitations period is tolled for the time period "during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending" in State court. See 28 U.S.C. § 2244(d)(2). The limitations period is not tolled during the time between the date on which a final decision is issued on direct appeal and the date on which the first State collateral challenge is filed. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).
The one-year limitations period can also be equitably tolled. 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) (en banc). Equitable tolling is unavailable in most cases, however, because it is applied only if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Id. (citation and internal quotation marks omitted). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). The petitioner bears the burden of showing that this "extraordinary exclusion" should apply to him. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
A federal or State habeas petition is deemed filed on the date the prisoner submits it to prison authorities for filing, rather than on the date it is received by the courts. Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2001), vacated and remanded on other grounds by Carey v. Saffold, 122 S.Ct. 2134 (2002). This is known as "the mailbox rule." Id.
Petitioner was convicted on June 9, 1998, and the conviction became final on August 8, 1998, when he failed to seek leave to appeal. See Cal. Penal Code § 1237.5; Cal. Rules of Court 31(d). The one-year limitations period, therefore, began to run on that date. Absent tolling, the limitations period would have expired on August 8, 1999. Petitioner did not file his federal petition until June 11, 2002, almost four years later. Petitioner has argued that the unavailability of AEDPA materials in the Mule Creek State Prison library at the time his federal habeas petition was due constituted an impediment to his filing a timely petition and also provides grounds for equitable tolling of the limitations period. Cf. Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) ...