ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 3, 2008, the undersigned ordered respondent to file a response to the petition. On August 29, 2008, respondent filed a motion to dismiss on the ground that petitioner filed his petition beyond the one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed a timely opposition to respondent's motion to dismiss. Respondent has filed a timely reply.
On January 28, 1999, an El Dorado County Superior Court jury convicted petitioner of robbery, burglary, unlawful taking of a vehicle, petty theft with a prior, making a terrorist threat, inflicting injury on a spouse, and unlawful possession of a firearm. (Docs. Lodged by Resp't Sept. 5, 2008, Docs. 1-2.) The jury also found a number of sentencing enhancement allegations to be true. (Id., Docs. 1-2.) The trial court sentenced petitioner to a term of seventeen years in state prison. (Id., Docs. 1-2.) On April 19, 2001, the California Court of Appeal for the Third Appellate District modified the judgment by striking petitioner's conviction for theft and its accompanying enhancement because petitioner could not properly be convicted of both robbery and theft based on the same conduct. In so doing, however, the Court of Appeal did not alter petitioner's aggregate sentence because the sentence with respect to the reversed theft count and use enhancement had been stayed in any event. The Court of Appeal affirmed the judgment in all other respects. (Id., Doc. 2.) On June 27, 2001, the California Supreme Court denied review. (Id., Doc. 4.)
On April 22, 2007, petitioner filed a petition for writ of habeas corpus in the El Dorado County Superior Court. (Docs. Lodged by Resp't Sept. 5, 2008, Doc. 5.) On May 23, 2007, the Superior Court denied the petition for failure to state a prima facie claim. (Id., Doc. 6.) On June 24, 2007, petitioner field a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Id., Doc. 7.) On July 5, 2007, the Court of Appeal denied the petition with a citation to In re Consiglio, 125 Cal. App. 4th 511, 516 (2005). (Id., Doc. 8.) Finally, on July 16, 2007, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Id., Doc. 9.) On January 23, 2008, the California Supreme Court summarily denied that petition. (Id., Doc. 10.)
On June 17, 2008, petitioner filed the instant federal petition in the United States District Court for the Northern District of California. On June 23, 2008, the Northern District transferred the case to this court, where venue is proper.
RESPONDENT'S MOTION TO DISMISS
Respondent moves to dismiss on the ground that petitioner's habeas petition is time-barred under AEDPA. (Resp't's Mot. to Dismiss at 1.) Respondent argues that the California Supreme Court denied the petition for review on June 27, 2001, causing petitioner's judgment of conviction to become "final" on September 25, 2001, after the time for filing a petition for writ of certiorari in the United State Supreme Court expired. Respondent argues that under AEDPA, the one-year statute of limitations period for filing a federal habeas petition began to run the following day on September 26, 2001 and expired on September 25, 2002. (Id. at 2-3.)
Respondent acknowledges that the proper filing of a state post-conviction application challenging a judgment of conviction tolls the one-year statute of limitations period. (Resp't's Mot. to Dismiss at 3.) However, respondent argues that here petitioner did not file any state collateral attacks on his conviction within the one-year federal limitations period. In addition, respondent argues that petitioner is not entitled to statutory tolling while his petitions for a writ of habeas corpus were pending in state court because he filed them after expiration of the statute of limitations for the filing of a federal petition. (Id. at 3-4.)
Respondent concludes that petitioner's federal petition for a writ of habeas corpus is untimely and should be dismissed with prejudice. (Resp't's Mot. to Dismiss at 4.)
In a brief opposition, petitioner argues that he is seeking retroactive application of "new rules" announced by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002), Blakely v. Washington, 542 U.S. 296 (2004) and Cunningham v. California, 549 U.S. 270 (2007). Petitioner also contends that the state courts based their decisions on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Petitioner concludes that he is entitled to federal review, and respondent's motion to dismiss should be denied. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 1-2.)
In reply, respondent has construed petitioner's argument as one that the commencement of the running of the statute of limitations in his case should be delayed pursuant to 28 U.S.C. § 2244(d)(1)(C) (providing that the statute of limitations may begin to run on "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.") Having so construed plaintiff's contention, respondent first argues that the United States Supreme Court issued its decision in Apprendi in 2000 and that petitioner is not entitled to a delayed commencement of the statute of limitations based on the new rule announced in that case because it was decided before petitioner's conviction became final. In addition, respondent argues that in Ring the Supreme Court merely applied the holding of Apprendi in the context of a death penalty cases and did not recognize a new right. Accordingly, the date of the decision in Ring cannot signal the commencement of the statute of limitations with respect to petitioner's claims. Next, respondent argues that although the Supreme Court announced a new rule ...