ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is respondent's motion to dismiss this action as time-barred. Following the granting of an extension of time to do so, petitioner has filed his opposition to the pending motion along with a motion for an evidentiary hearing. Following the granting of an extension of time to do so, respondent has filed a reply.
I. Respondent's Arguments
Respondent argues that the petition before the court was untimely filed based on the following chronology. On December 21, 2001, petitioner was sentenced to a determinate state prison term of twenty-one years following his conviction for voluntary manslaughter. Petitioner did not file an appeal and the judgment of conviction became final on February 19, 2002, when the time for filing an appeal expired. The one-year statute of limitations for the filing of a federal habeas petition began to run on February 20, 2002, and expired on February 19, 2003. After the federal statute of limitations expired, petitioner filed six collateral challenges to his conviction in state court. The first of these state habeas petitions was not filed until February 22, 2005 with the Sutter County Superior Court. (Resp't Lodged Docs, filed Dec. 14, 2007, Doc. 2.) All of the other state habeas petitions were filed thereafter. Therefore, respondent argues, none of the six state habeas petitions serve to toll the federal statute of limitations. Under respondent's calculation, the federal petition filed in this court on December 20, 2006, was filed over three years after that statute of limitations had expired.
II. Petitioner's Opposition
Petitioner argues that on February 21, 2002, following his judgment of conviction becoming final on December 2, 2001, he was transported to Salinas Valley State Prison (SVSP). (Opp'n at 2.) He claims that during 2002, there were "a series of 'back to back' 'lockdowns'" which prevented him from gaining access to the prison law library. (Id.) He also argues that lockdowns beginning in early April 2003 and continuing through December 2003 and from early March of 2004 through the first week of February 2005, impeded him. (Id. at 3.) Based upon these lockdowns, petitioner claims that he was not able to file his first state habeas petition until February 22, 2005. Even though it is a motion to dismiss that is pending before the court, petitioner contends that "there are genuine issues of material fact that preclude summary judgment" because the lockdowns at SVSP prevented him gaining access to the prison law library and "might constitute an impediment" to his filing a timely habeas petition. Petitioner concludes that respondent is not entitled to summary judgment and that the court should conduct "an evidentiary hearing on respondent's defense of untimeliness." (Id. at 4.)
III. Motion for Evidentiary Hearing
In his separate motion for an evidentiary hearing, petitioner repeats his contention that he was delayed in pursuing his habeas claims by lockdowns at SVSP where he was incarcerated. In this regard, plaintiff represents that during the lockdowns, inmates who had "verifiable court deadlines" were provided access to the prison law library but was denied to inmates with filing deadlines imposed under the AEDPA. (Mot. for Evid. Hearing, Mem. (Pet.'s Mem.) at 2.) Petitioner argues that this policy is an unlawful state-created impediment to the filing of a timely federal habeas petition. (Id. at 5.) Petitioner contends that under the decision in Bounds v. Smith, 430 U.S. 817 (1977) inmates have a constitutional right to access to the courts which prohibits prison officials from interfering with inmates' attempts to prepare or file legal documents. (Id. at 5-6.) Petitioner also argues that the policy imposed at SVSP favoring inmates with court imposed deadlines violates the Equal Protection Clause of the Fourteenth Amendment in that there is no rational basis for the disparate treatment. (Id. at 9.)
According to petitioner's calculations, the lockdowns at SVSP posed an impediment to him until the first week of February 2005. (Id. at 12.) Petitioner takes the position that since he filed his first state habeas petition on February 22, 2005, the federal statute of limitations ran for only about fourteen days before it was tolled by the filing of that petition. (Id.) Following the California Supreme Court's denial of his habeas petition on May 17, 2006, petitioner asserts that only another 185 days passed before he timely filed his federal petition on December 20, 2006, well within the one-year statute of limitations. (Id. at 13.)
Petitioner contends that he is entitled to equitable tolling for approximately three years because the lockdowns were circumstances beyond his control. (Id. at 13.) Thus, he calculates that he is entitled to equitable tolling from February 21, 2002, when he arrived at SVSP all the way until the first week of February 2005. (Id. at 4.) Based upon his claimed entitlement to equitable tolling, petitioner argues that when he filed his federal habeas petition he still had 275 days remaining before the AEDPA statute of limitations would have expired. (Id.)
In his declaration submitted in support of his motion for an evidentiary hearing, petitioner makes these same allegations but also asserts that even when SVSP was not on lockdown, he could not access the law library because "there were significant periods of time, too numerous to recall with any degree of accuracy," when law library access was not available because of "chronic staff shortages[.]" (Mot. for Evid. Hearing, Pl.'s Decl. at 6.)
Respondent argues that petitioner is not entitled to equitable tolling based upon his bare assertions about lockdowns made without any supporting documentation. (Reply at 3.) Respondent notes that prison lockdowns do not excuse a petitioner from demonstrating that he was diligent in pursuing his habeas claims. (Id.) Respondent argues that even if his access to the prison law library was limited for periods of time, petitioner could have used the paging and copy service to obtain copies of case law and other legal materials during the claimed lockdowns. (Id.) Finally, respondent argues that even if the court were to find petitioner entitled to equitable tolling for the periods of time he claims to have been the subject of lockdowns, the one-year statute of limitations would still have expired before his federal petition was filed. (Id. at 4.) In this regard, counting the days that SVSP was not on lockdown and adding the time between the California Supreme Court's denial of petition before it and the filing of the federal habeas petition, respondent calculates ...