FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 28, 2008, the undersigned ordered respondent to file a response to the petition. On April 30, 2008, respondent filed a motion to dismiss on the grounds that petitioner's petition is successive under 28 U.S.C. § 2244(b) and was filed beyond the one-year statute of limitations. On May 30, 2008, petitioner filed an opposition to the motion. On June 24, 2008, respondent filed a reply.
On June 27, 1986, a Sacramento County Superior Court jury found petitioner guilty on fifty criminal counts, including burglary, residential robbery, assault with intent to commit rape, penetration with a foreign object, sodomy, false imprisonment, rape, receiving stolen property, assault with a deadly weapon, robbery, and kidnapping. (Resp't's Lodged Docs. 1-2 & 18.) A number of sentencing enhancement allegations were found to be true. (Id., Docs. 1-2.) The trial court sentenced petitioner to four consecutive life terms, two concurrent life terms and a consecutive indeterminate term of 63 years in state prison. (Id., Docs. 1-2 & 18.)
On January 6, 1989, the California Court of Appeal for the Third Appellate District reversed three false imprisonment convictions, ten special findings, and the imposition of the sentence with respect to five of the criminal counts. The court stayed the sentences imposed on an additional nine counts. The Court of Appeal's decision resulted in the reduction of petitioner's determinate state prison term by ten years and stayed the concurrent indeterminate life sentences. The Court of Appeal affirmed the judgment in all other respects. (Resp't's Lodged Docs. 2 & 18.) On April 19, 1989, the California Supreme Court denied petitioner's petition for review. (Id., Doc. 4.)
Petitioner filed seven collateral challenges to his conviction in state court. He filed his first petition with the California Supreme Court on or about August 15, 1989. He filed six subsequent petitions at various levels of the state court system until the California Supreme Court denied his seventh and final petition on February 7, 2007. (Resp't's Lodged Docs. 5-16.)
On or about April 25, 1991, petitioner filed a federal habeas application in this court challenging the same judgment of conviction he now seeks to challenge in the instant petition. (Resp't's Lodged Doc. 17; Case No. CIV S-91-0501 GEB JFM P.) On December 21, 1994, the assigned district judge in that case adopted the magistrate judge's findings and recommendations and dismissed the 1994 federal petition on the merits. (Resp't's Lodged Docs. 18-19; Case No. CIV S-91-0501 GEB JFM P.) Petitioner appealed from that decision to the United States Court of Appeals for the Ninth Circuit. (Resp't's Lodged Doc. 20.) The Ninth Circuit affirmed the judgment on November 1, 1995. (Resp't's Lodged Doc. 21.)
On or about July 7, 2007, petitioner filed the instant petition in the United States District Court for the Northern District of California. On September 11, 2007, that court transferred the case to this court where venue is proper.
RESPONDENT'S MOTION TO DISMISS
Respondent argues that the pending petition is successive and untimely. (Resp't's Mot. to Dismiss at 1.) First, respondent argues that petitioner previously filed a federal habeas petition in this court, challenging the same state court conviction and sentence he now seeks to challenge once again. The respondent notes that this court denied that earlier petition on the merits. Respondent contends that, because petitioner raised his sole claim regarding jury selection process in his prior federal petition, his current petition must be dismissed pursuant to 28 U.S.C. § 2244(b). Respondent also notes that petitioner has not obtained an order from the Ninth Circuit authorizing the district court to consider this second and successive petition. Accordingly, respondent concludes that the court should dismiss the instant petition without prejudice to re-filing if petitioner obtains the necessary order from the Ninth Circuit. (Id. at 2.)
Respondent also argues that the court should dismiss the instant petition because it is untimely. (Resp't's Mot. to Dismiss at 4-5.) Respondent argues that petitioner's conviction became final on July 18, 1989, before the enactment of Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). For purposes of the AEDPA statute of limitations, respondent contends that petitioner's federal petition was due April 25, 1997, one year after the effective date of AEDPA, plus any time for tolling. (Id. at 5.)
Respondent acknowledges that the proper filing of a state post-conviction application with respect to the pertinent judgment or claim tolls the one-year limitations period. (Resp't's Mot. to Dismiss at 4-5.) However, respondent argues that petitioner did not file any state post-conviction collateral actions within the one-year limitations period for the filing of a federal petition. Respondent contends that the five state habeas petitions petitioner filed before commencement of the limitations period and the two state habeas petitions that he filed after the limitations period expired do not serve to toll the statute of limitations. Respondent asserts that petitioner's previously filed federal habeas petition also fails to toll the applicable federal statute of limitations. Accordingly, respondent concludes that the instant petition is untimely by more than ten years. (Id. at 5-6.)
II. Petitioner's Opposition
In opposition to respondent's motion to dismiss, petitioner does not dispute that he previously filed a habeas petition in this court. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 2.) However, citing the decision in Johnson v. California, 545 U.S. 162 (2005), petitioner argues that since the denial of that earlier petition the United State Supreme Court has recognized a new retroactive rule regarding jury selection discrimination claims. Petitioner contends that he properly filed the instant petition ...