The opinion of the court was delivered by: Maxine M. Chesney United States District Judge
ORDER GRANTING MOTION TO DISMISS
On July 13, 2007, petitioner, a California prisoner proceeding pro se, filed the above-titled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 23, 2007, after reviewing the petition, the Court ordered respondent to file an answer showing cause why the petition should not be granted, or in the alternative, a motion to dismiss on procedural grounds. Respondent chose the latter course, and has filed a motion to dismiss the petition on the ground that the petition is barred by the applicable one-year statute of limitations. See 28 U.S.C. § 2244(d). Petitioner has filed an opposition, and respondent has filed a reply.
In 2003, in the Superior Court of Alameda County ("Superior Court"), petitioner was found guilty of stalking and making criminal threats. The trial court suspended the imposition of sentence and placed petitioner on probation for five years. In 2004, the court revoked petitioner's probation and sentenced him to state prison for thirty-two months. (Pet. at 2-3.) In 2003, petitioner appealed his conviction; the appeal was denied by the California Court of Appeal ("Court of Appeal") on February 22, 2005, and the California Supreme Court ("Supreme Court") denied review on April 27, 2005. (MTD Exs. 1, 3.) In 2004, petitioner appealed the revocation of probation; the appeal was denied by the Court of Appeal on March 29, 2005. (MTD Ex. 2.) On April 18, 2006, petitioner filed a habeas petition in the Superior Court; the petition was denied that same date. (MTD Exs. 4, 5.) On June 20, 2006, petitioner filed a habeas petition in the Court of Appeal; the petition was denied on June 22, 2006. (MTD Ex. 6.)
On October 17, 2006, petitioner filed a habeas petition in the Supreme Court; the petition was denied on April 18, 2007. (MTD Ex. 7.) On July 13, 2007, petitioner filed the instant federal habeas petition, which raises claims challenging both the conviction and probation revocation.
A. Statute of Limitations
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 limitations with respect to petitions for a writ of habeas corpus filed by state prisoners. Under AEDPA, petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year 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).*fn1 Here, petitioner's appeal of his trial claims became final on July 25, 2005, ninety days after the Supreme Court denied review, and the date on which the time for petitioner to file a petition for a writ of certiorari from the United States Supreme Court expired. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).*fn2 Accordingly, absent tolling, petitioner had until July 26, 2006, to file a timely habeas corpus petition in federal court. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (holding period of statutory tolling calculated according to Rule 6(a) of Federal Rules of Civil Procedure, according to which "the day of the act, event, or default from which the designated period of time begins to run shall not be included" in calculating designated period of time). As petitioner did not file the instant petition until July 13, 2007, respondent moves to dismiss the petition on the ground it was filed in excess of the one-year limitations period. Petitioner argues statutory and equitable tolling render the petition timely.
Pursuant to § 2244(d)(2), the one-year statute of limitations is tolled 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). The statute of limitations is not tolled, however, during the period between the date on which the relevant final decision under 28 U.S.C. § 2244(d)(1) is issued and the date on which the first state collateral challenge is filed. Nino v. Galaza , 183 F.3d 1003, 1006 (9th Cir. 1999). Thus, in the instant case, the statute began to run on July 26, 2005, the day after the Supreme Court's denial of review became final, and continued to run for 267 days, i.e., until petitioner filed a state habeas petition in the Superior Court on April 18, 2006. Ordinarily, under § 2244(d)(2), the one-year limitations period is tolled from the time a California prisoner files his first state habeas petition until the date the state Supreme Court rejects his final collateral challenge. Carey v. Saffold, 536 U.S. 214, 219-20 (2006). Consequently, in the instant case, the limitations period would toll continuously from April 18, 2006, the date on which petitioner filed his first state habeas petition in the Superior As noted, the instant petition challenges both petitioner's conviction and probation revocation. Although petitioner's appeal of his probation revocation became final on May 8, 2005, the date on which the forty-day time period to file a petition for review expired, see Court, until April 18, 2007,the date on which the Supreme Court denied his final state habeas petition. Here, however, respondent argues, petitioner is not entitled to such continuous tolling of the limitations period because petitioner unreasonably delayed in filing his state habeas petition in the Supreme Court. Accordingly, the Court will review petitioner's state habeas petitions in order to determine the amount of statutory tolling to which petitioner is entitled for each of the time periods during which those petitions were pending in state court.
1. Superior Court and Court of Appeal Petitions
As noted above, petitioner filed: (1) a habeas petition in the Superior Court on April 18, 2006, which petition was denied by the Superior Court that same date, and (2) a habeas petition in the Court of Appeal on June 20, 2006, which petition was denied on June 22, 2006. There is no dispute that the limitations period was tolled continuously from the date petitioner filed ...