The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, proceeding with appointed counsel, filed a petition pursuant to 28 U.S.C. § 2254. Petitioner was convicted of possession of a sharp instrument by a state prisoner in Sacramento County Superior Court and sentenced in 2002, pursuant to the three-strikes law, to a term of 25 years to life. Petition, p. 3. In his original petition, which was filed pro se, petitioner raised the following grounds: 1) trial court error/abuse of discretion in failing to grant petitioner a hearing as to his trial counsel's ineffective assistance of counsel prior to trial; 2) trial court violated petitioner's constitutional rights in permitting petitioner to represent himself when petitioner was forced to that position by court's failure to hear his motion set forth in claim one above; 3) his constitutional rights were violated by his having been shackled throughout the trial without a hearing; 4) trial court abuse of discretion when petitioner's pro per Pitchess motion was refused and unreviewed due to petitioner's procedural errors.*fn1 Petition, pp. 6-20. Motion to Dismiss
Respondent filed a motion to dismiss on March 27, 2007, to which petitioner, following liberal extensions of time, filed an opposition and request for an evidentiary hearing, on January 17, 2008, after which respondent, also with extensions of time, filed a reply on March 27, 2008. Petitioner does not dispute that the petition was filed beyond the AEDPA filing deadline. See Opposition (Opp.), filed on Jan. 17, 2007, p. 2. At a hearing on May 22, 2008, petitioner's motion for an evidentiary hearing and expansion of the record based on petitioner's claimed entitlement to equitable tolling based on petitioner's alleged serious mental illness and cognitive impairments was granted, and the evidentiary hearing date was set. See Order, filed on May 27, 2008. Following the evidentiary hearing on July 15, 2008, wherein Marylou Hillberg represented petitioner and Robert Gezi represented respondent, the parties filed supplemental briefing with respect to the applicable standard for equitable tolling: respondent on July 23, 2008, and petitioner on July 24, 2008. On July 29, 2008, respondent made a supplemental lodging.
The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1):
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
As noted, there is no dispute that petitioner's federal habeas filing was untimely under the AEDPA statute. Opp., p. 2. The record demonstrates that petitioner's conviction became final on January 27, 2004, ninety days after the state supreme court denied petitioner's petition for review on direct appeal on October 29, 2003. Respondent's Lodged Document 5; see Cal. Rules of Court, Rule 8.308(a) (former Rule 31); Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) ("holding] that the period of 'direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the [ninety-day] period within which a petitioner can file a petition for a writ of certiorari with the United States Supreme Court, whether or not the petitioner actually files such a petition.") The statute of limitations began to run the next day, on January 28, 2004. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is, until January 27, 2005, to file a timely federal petition, absent applicable tolling.
Section 2244(d)(2) provides that 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 shall not be counted toward any period of limitation. On November 15, 2004, under the mailbox rule,*fn2 petitioner filed one state habeas petition, which was denied on October 12, 2005. Respondents' Lodged Document 6. Pace. At the time of filing his single state court habeas petition, respondent is correct that 291 days of the statute had run, leaving 74 days to run after the October 12, 2005, denial for petitioner to file in federal court, or until December 25, 2005 (or the day after in view of the holiday). However, petitioner did not file the instant petition until October 10, 2006, after a lapse of 362 ...