The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2003 conviction for first degree murder. Petitioner filed his original petition on January 19, 2007. This action is proceeding on the amended petition filed December 4, 2007.
Pending before the court is respondent's March 5, 2008, motion to dismiss on grounds that this action is barred by the statute of limitations. After carefully considering the record, the court recommends that respondent's motion be granted.
Legal Standard to be Utilized
The court pauses for a moment, to discuss a procedural issue which the parties ignore -- the standard which the court utilizes to assess the extra-record evidence in an AEDPA statute of limitations motion.
Procedurally speaking, habeas corpus is an unruly beast. The statutes concerning habeas corpus allow "documentary evidence" to be added, 28 U.S.C. § 2247, and in the discretion of the judge, evidence by "by affidavit." 28 U.S.C. § 2246. Judges are allowed in their discretion to "supplement the record" with whatever documentary evidence seems appropriate. Rules for § 2254 cases, Rule 7. Such additions are the antithesis of a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Moreover, Ninth Circuit precedent does not recognize a civil "motion to dismiss" in habeas practice. O'Bremski v. Maas, 915 F.2d 418, 420 (9th Cir. 1990). This authority would indicate that the court is not limited to the pleadings, and may decide the motion based on all submittals. Yet we are also told that where not inconsistent with specific habeas statutes or rules, the Federal Rules of Civil Procedure apply, Fed. R. Civ. P. 81(a)(4), which here would indicate that a summary judgment procedure would apply. See Olsen v. Idaho State Brd. Of Medicine, 363 F.3d 916, 921-922 (9th Cir. 2004), where evidence outside the pleading is presented on a motion to dismiss, the matter should be treated as one for summary judgment.
Based on the above, the undersigned chooses that line of authority which would indicate that the AEDPA statute of limitations may be decided on the extra-record submittals of the parties within a motion despite the existence of an "issue of fact," except where the court in its discretion believes that the factual "paper" record is insufficient and requires an evidentiary hearing.
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.
On October 13, 2004, the California Supreme Court denied petitioner's petition for review. Respondent's Lodged Document 5. Petitioner's conviction became final 90 days later on January 11, 2005. Bowen v. Roe, 188 F.3d at 1157. Therefore, petitioner had one year from that date, i.e. until January 11, 2006, to file a timely federal petition. The instant action, filed January 19, 2007, is not timely unless petitioner is entitled to statutory or equitable tolling.
28 U.S.C. § 2254(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 ...