The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss (Doc. 9) the petition as untimely. Petitioner has not filed an opposition.
Petitioner was convicted of two counts of first degree murder and, with various enhancements, was sentenced to life without the possibility of parole plus 25 years. The conviction and sentence were affirmed by the California Court of Appeal on April 12, 2006, and the California Supreme Court denied direct review on July 12, 2006. Petitioner then filed three state court post-conviction actions as follows:
First Petition Court -- Sacramento County Superior Court
Denied -- May 15, 2007 Second Petition Court -- California Court of Appeal
Filed -- October 18, 2007
Denied -- October 25, 2007 Third Petition Court -- California Supreme Court
Filed -- December 17, 2007
Denied -- June 11, 2008 The instant federal petition was filed on September 4, 2008.
Respondent argues that the federal petition was filed after expiration of the one-year statute of limitations. Federal habeas corpus petitions must be filed within one year from the later of: (1) the date the state court judgment became final; (2) the date on which an impediment to filing created by state action is removed; (3) the date on which a constitutional right is newly-recognized and made retroactive on collateral review; or (4) the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court judgment becomes final by the conclusion of direct review or expiration of the time to seek direct review. See 28 U.S.C. § 2244(d)(1).
Where a petition for review by the California Supreme Court is filed and no petition for certiorari is filed in the United States Supreme Court, the one-year limitations period begins running the day after expiration of the 90-day time within which to seek review by the U.S. Supreme Court. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Where no petition for review by the California Supreme Court is filed, the conviction becomes final 40 days following the Court of Appeal's decision, and the limitations period begins running the following day. See Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002). If no appeal is filed in the Court of Appeal, the conviction becomes final 60 days after conclusion of proceedings in the state trial court, and the limitations period begins running the following day. If the conviction became final ...