The opinion of the court was delivered by: CHARLES BREYER, District Judge
ORDER GRANTING MOTION TO DISMISS (Doc # 6)
Petitioner, a state prisoner incarcerated at the Correctional
Training Facility in Soledad, California, seeks a writ of habeas
corpus under 28 U.S.C. § 2254. Per order filed on May 17, 2005,
the court noted that the petition appears untimely and ordered
respondent to move to dismiss the petition on the ground that it
is untimely, or otherwise inform the court that respondent is of
the opinion that a motion to dismiss is unwarranted in this case.
Respondent filed a motion to dismiss the petition as untimely
under 28 U.S.C. § 2244(d). Petitioner filed an opposition arguing
that he is entitled to equitable tolling and delayed commencement
of the pertinent limitation period, and respondent filed a reply. BACKGROUND
Petitioner was convicted of second degree murder by jury in the
Superior Court of the State of California in and for the County
of San Mateo. Allegations that petitioner used a firearm and
caused great bodily injury were also found to be true. On October
22, 1992, petitioner was sentenced to 20 years to life.
On July 21, 1994, the California Court of Appeal affirmed the
judgment of the superior court and, on November 16, 1994, the
Supreme Court of California denied review.
Petitioner did not seek further review until June 16, 2003,
when he began seeking collateral relief from the state courts by
filing a petition for a writ of habeas corpus in the Superior
Court of the State of California in and for the County of
Monterey. It was denied on June 20, 2003.
On December 9, 2003, petitioner filed a petition for a writ of
habeas corpus in the California Court of Appeal. It was denied on
December 18, 2003.
On February 13, 2004, petitioner filed a petition for a writ of
habeas corpus in the Supreme Court of California. It was denied
on December 15, 2004.
On February 24, 2005, petitioner filed the instant federal
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: (A) the
judgment became final after the conclusion of direct review or
the time passed for seeking direct review; (B) an impediment to
filing an application created by unconstitutional state action
was removed, if such action prevented petitioner from filing; (C)
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 (D) the factual predicate of the
claim could have been discovered through the exercise of due
diligence. 28 U.S.C. § 2244(d)(1). Time during which a properly
filed application for state post-conviction or other collateral
review is pending is excluded from the one-year time limit. Id.
AEDPA's one-year limitation period did not start to run earlier
than April 24, 1996. A state prisoner with a conviction finalized
before April 24, 1996, such as petitioner, therefore generally
had until April 23, 1997 to file his federal habeas petition.
See Calderon v. United States District Court (Beeler),
128 F.3d 1283, 1287 (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). The instant petition was not
filed until February 24, 2005, however. It is untimely unless the
limitation period was tolled for a substantial period of time.
Section 2244(d)(2) tolls the one-year limitation period for the
"time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2).
Unfortunately for petitioner, by the time he filed his first
state habeas petition on June 16, 2003, the one-year limitation
period had long expired on April 24, 1997. A state habeas
petition filed after AEDPA's statute of limitation ended cannot
toll the limitation period under § 2244(d)(2). See Ferguson v.
Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice,
276 F.3d 478, 482 (9th Cir. 2001). Section 2244(d)(2) cannot
"revive" the limitation period once it has run (i.e., restart the
clock to zero); it can only serve to pause a clock that has not
yet fully run. "Once the limitations period is expired,
collateral petitions can no longer serve to avoid the statute of
limitations." Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998).
Petitioner claims he is entitled to equitable tolling of the
limitation period because he lacked the necessary legal and
educational skills to understand the provisions of AEDPA and file
his petition on time. He also claims that he is entitled to
delayed commencement of the limitation period under §
2244(d)(1)(B) because he was incorrectly advised by
prison-assigned inmate legal clerks that his case was ...