The opinion of the court was delivered by: JAN ADLER, Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION AND PROCEDURAL BACKGROUND
On November 24, 1998 in the San Diego Superior Court, Victor
Sanchez pleaded guilty to assault with a deadly weapon while
personally inflicting great bodily injury (Cal. Penal Code §§
245(a), 12022.7.) (Lodgment No. 1 at 3.) In exchange, the
prosecutor dismissed the balance of the charges against Sanchez,
including another assault charge, a battery charge, and two
counts of making a terrorist threat. (Lodgment No. 1 at 8-10.)
The parties stipulated that Sanchez would receive a seven-year
term, and Sanchez waived his right to appeal. (Lodgment No. 1 at
3-4.) On January 15, 1999, Sanchez was sentenced to state prison
for seven years. (Lodgment No. 1 at 1-2.) On August 12, 1999, Sanchez filed a request with the San Diego
Superior Court for transcripts. The Superior Court denied
Sanchez's request on September 27, 1999, because he had not
stated sufficient factual grounds to warrant taxpayer expense to
duplicate and provide him copies of the record. (Lodgments No. 2
In May and July 2000, Sanchez requested that he be able to file
a belated notice of appeal. (Lodgment No. 4.) The San Diego
County Superior Court stamped these documents "Received," but did
not file them, and on August 4, 2000, the court denied his motion
on the grounds that he stipulated to his seven-year sentence and
that he waived the right to file an appeal. (Lodgment No. 5 at
After unsuccessfully requesting assistance from an
indigent-appellate-defense organization (see Lodgment No. 6 at
2-4), Sanchez requested on November 15, 2000 that the California
Court of Appeal permit him to file a belated notice of appeal.
(Lodgment No. 6.) The Court of Appeal denied his request on
December 1, 2000 on the grounds that he waived the right to file
an appeal. (Lodgment No. 7.)
Sometime in early February 2001, Sanchez apparently sent a
letter to the California Court of Appeal regarding his
conviction. The Court of Appeal replied to his request with a
letter indicating that Sanchez should have been aware that he had
stipulated to a seven-year term. (Lodgment No. 8 at 50; see
Sanchez's Pet. at 2.) Respondent indicated that it has no record
of Sanchez's letter or an independent record of the Court of
Appeal's reply, and suggests that this means the court did not treat Sanchez's letter as a formal petition. (Respondent's Points
and Authorities in Support of its Motion to Dismiss at 2-3.)
In August 2004, Sanchez attempted to file a petition Court.
writ of error coram nobis with the California Supreme Court.
(Lodgment No. 8.) The court returned this petition to Sanchez
unfiled on the grounds that it had no jurisdiction to grant coram
nobis relief, which could only be granted by the court in which
the original proceedings took place. (Lodgment No. 10.)
Sanchez filed the current Petition for Writ of Habeas Corpus on
September 30, 2004. On October 12, 2004, after an initial review
of the petition, the Court ordered Respondent to file either a
motion to dismiss by November 15, 2004 or an Answer by November
29, 2004. Instead of filing a response, on November 15, 2004,
Respondent filed an application for a 30-day extension of time,
which the Court granted on November 16, 2004. The Order directed
Respondent to file a motion to dismiss by December 15, 2004 or an
Answer by December 29, 2004.
On December 10, 2004, Respondent filed a second application for
an extension of time to file a response. The Court granted a
second 30-day extension of time and directed Respondent to file a
motion to dismiss by January 14, 2005 or an Answer by January 28,
2005. Respondent filed its Motion to Dismiss on January 14, 2005.
Sanchez never filed a Response.
On April 27, 2005, the Court issued an order requiring Sanchez
to file supplemental briefing regarding the issue of equitable
tolling by May 20, 2005. On June 22, 2005, the order was returned
to the Court, stamped "Returned Mail. No Forwarding Address."
After some investigation, the Court contacted Sanchez's parole officer, who said that Sanchez had been released on
parole, but had never contacted his parole officer, and the state
was therefore unaware of Sanchez's whereabouts or current
address. The Court was therefore unable to provide Sanchez with
its April 27, 2005 order.*fn1
A. Statute of Limitations
Under § 2244(d)(1), a state court prisoner usually has one year
from the date his conviction becomes final within which to file a
§ 2254 petition in federal court. 28 U.S.C. § 2244(d)(1).
Judgment becomes final by the conclusion of direct review.
28 U.S.C. § 2244(d)(1)(A) (West Supp. 2003). Sanchez entered his
guilty plea on November 24, 1998, and judgment was entered on
January 15, 1999. Under the California Rules of Court, "unless
otherwise provided by law, a notice of appeal must be filed
within 60 days after the rendition of the judgment or the making
of the order being appealed." Cal. Ct. R. 30.1(a); see Smith
v. Duncan, 297 F.3d 809, 812-13 (9th Cir. 2002) (relying on Cal.
Ct. R. to establish date of finality). Since Sanchez did not even
attempt to file an appeal within 60 days, his judgment became
final on March 16, 1999. Sanchez failed to file the ...