The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition pursuant to 28 U.S.C. §2254. Petitioner challenges his September 9, 2004, Placer County jury trial conviction for assault with a deadly weapon by means of force likely to produce great bodily injury and felony hit-and-run driving causing injury. The jury also found true that petitioner personally inflicted great bodily injury and used a dangerous or deadly weapon (an automobile) during the commission of the felony. Petitioner was sentenced to a prison term of six years. Petition for Writ of Habeas Corpus (Pet.) at 1-2.
Pending before the court is respondent's motion to dismiss the petition as barred by the AEDPA one-year statute of limitations.
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.
Under 28 U.S.C. § 2244(d)(2): 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 under this subsection.
On June 28, 2006, the California Court of Appeal, Third Appellate District, affirmed the judgment. The California Supreme Court denied the petition on October 18, 2006. Petitioner did not file any post-conviction collateral challenges. Petitioner's conviction became final on January 16, 2007, ninety (90) days after the state supreme court denied his petition for review. 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."). Thus, the last day to file a federal petition was on January 16, 2008.
In opposition to respondent's motion to dismiss, petitioner argues the petition is timely because under the prison "mailbox rule" the dates on which he filed the habeas petition are earlier than the dates on which respondent relies. Under the mailbox rule, a pro se prisoner's notice of appeal is deemed filed on the date of its submission to prison authorities for mailing to the court, as opposed to the date of its receipt by the court clerk. Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 2385 (1988); Koch v. Ricketts, 68 F.3d 1191 (9th Cir. 1995) (The fact that a prisoner did not send mail by a procedure that caused a log to be kept does not bar him from receiving the benefit of a constructive filing date.). For the purposes of calculating the AEDPA limitation period, the mailbox rule applies to the filing of a federal habeas petition. See Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir.2001), vacated and remanded on other grounds. The instant petition was filed with the court on February 7, 2008, several weeks after the statute of limitations expired. However, annexed to the petition was petitioner's declaration stating that he placed the petition in the prison mailing system on December 10, 2007, well before the deadline. Pet. at 49.*fn1 Petitioner declares under the penalties of perjury, that he placed the petition in a drop box on December 10, 2007, that is routinely used for legal mail ...