The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (Docket no. 6)
Petitioner Frederick Gatlin, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Respondent James Tilton filed a motion to dismiss for untimeliness. Petitioner filed an opposition, and Respondent subsequently filed a reply. Having considered the papers submitted, the Court GRANTS Respondent's motion to dismiss.
On November 9, 1998, Petitioner was convicted of vehicle theft under Cal. Veh. Code § 10851 and, based upon two prior robbery convictions, sentenced to twenty-five years to life pursuant to California's Three Strikes law. Petitioner appealed the judgment to the California Court of Appeal where his conviction was affirmed on August 2, 2000. He subsequently filed a petition for review in the California Supreme Court which was denied on October 18, 2000. On September 28, 2006, after a period of over five years, Petitioner filed a petition for a writ of habeas corpus in the Santa Clara Superior Court. The petition was denied on October 28 30, 2006. He filed a petition for a writ of habeas corpus in the California Court of Appeal on December 6, 2006, which was denied on December 21, 2006. Finally, he filed a petition for a writ of habeas corpus in the California Supreme Court on January 16, 2007, which was denied on June 20, 2007.
On July 18, 2007, Petitioner filed the instant petition.*fn1
Respondent filed a motion to dismiss, claiming that Petitioner had failed to file his petition within the statute of limitations. On December 31, 2007, Petitioner responded by arguing that he was entitled to equitable tolling based upon his mental illness, his use of psychotropic medicines, and the physical ailments that he suffered from 2004 until 2006. On January 10, 2008, Respondent filed a reply.
The AEDPA became law on April 24, 1996 and imposed for the first time 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 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)(A)-(D). Also, "[t]he 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 shall not be counted toward any period of limitation." Id. § 2244(d)(2) A state prisoner with a conviction finalized after April 24, 1996, such as Petitioner, ordinarily must file his federal habeas petition within one year of the date his process of direct review came to an end. See Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court 1 (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). 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). "Direct review" includes the ninety-day period during which a criminal appellant can file a petition for a writ of certiorari from the United States Supreme Court, whether he actually files such a petition or not. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). In the present case, the judgment became final for purposes of the statute of limitations on January 19, 2001 because Petitioner did not file a petition for a writ of certiorari in the United States Supreme Court within ninety days. Bowen, 188 F.3d at 1159.
Accordingly, Petitioner was required to file a federal habeas corpus petition no later than January 18, 2002. Because he did not file the present petition until July 18, 2007 -- more than five years after the limitations period had expired -- the petition is untimely unless he can show that he is entitled to statutory or equitable tolling.
The petition may nonetheless be timely if the limitations period was tolled under 28 U.S.C. § 2244(d)(2) for a substantial period of time. As noted earlier, AEDPA's one-year limitations period is tolled under § 2244(d)(2) for "[t]he 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). The limitations period is also tolled during the time between a lower state court's decision and the filing of a notice of appeal to a higher state court. Carey, 536 U.S. at 223. In California, where prisoners generally use the state's original writ system, this means that the limitations period remains tolled during the intervals between a state court's disposition of an original state habeas petition and the filing of the next original state habeas petition in a higher court, provided the prisoner did not delay unreasonably in seeking review in the higher court. See id. at 220-25. Petitioner filed his state habeas petition in the Santa Clara County Superior Court on September 28, 2006. However, he is not entitled to tolling under Section 2244(d)(2) because the limitations period had already run on January 18, 2002. A state habeas petition filed after AEDPA's statute of limitations ended cannot toll the limitations period. "[S]section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed," even if the state petition was timely filed. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that Oregon's two-year limitations period for the filing of state habeas petitions does not alter the operation of the AEDPA, even though prisoners who take full advantage of the two-year period will forfeit their right to federal habeas review). Section 2244(d)(2) cannot revive the limitations period once it has run. It cannot restart the clock to zero; it can only serve to pause a clock that has not yet fully run. Thus, in order to toll the limitations period under § 2244(d)(2), Petitioner should have begun to pursue ...