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 an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is serving a sentence of 15 years to life, having been convicted of second degree murder, vehicular manslaughter, speeding, hit-and-run, starting a stopped vehicle when not safe to do so in Sacramento County Superior Court in 2003, with sentence imposed in January, 2004. Petition, pp. 1-2. According to respondent, before trial petitioner pled no contest to one count of hit-and-run involving death and one count of driving without a license. Motion to Dismiss, p. 1. His conviction at the following jury trial was for one count of second degree murder and one count of vehicular manslaughter; the jury found true, as a conduct enhancement, that petitioner had fled the scene of the crime. Id.
Petitioner challenges his conviction on the following grounds: 1) prosecutorial misconduct violating petitioner's right to fair trial/due process when unqualified expert witness offered previously undisclosed prejudicial opinion testimony at trial; 2) trial court error when petitioner's trial counsel's motion for a mistrial based on ground one was denied; 3) prosecution argued facts not in evidence in closing argument in violation of right to due process; 4) ineffective assistance of appellate counsel by counsel's failure to raise grounds one through three on appeal. Petition, pp. 4-5, 9-40.
Pending before the court is respondent's motion to dismiss (MTD) the petition on the ground that petitioner failed to file the petition timely. 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.
After the conviction was affirmed by the state court of appeal, petitioner filed a petition for review in the state supreme court which was denied on 12/14/05. MTD, p. 3; Lodged Document (Lod. Doc.) 1. As respondent contends (MTD, p. 4), petitioner's conviction then became final on 3/14/06, ninety days after the state supreme court denied petitioner's petition for review on direct appeal. 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 3/15/06. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Therefore, absent applicable tolling, the one-year limitations period would have expired as of 3/14/07.
28 U.S.C. § 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 under this section, as respondent acknowledges. MTD, p. 4.
Petitioner filed his first state habeas corpus petition, stamped filed as of 3/14/07, which was the last day of the AEDPA limitations period. MTD, p. 4; Lod. Doc. 2. Respondent submits as Lod. Doc. 3, the superior court's decision denying the petition, which is dated 4/24/07. As to the second habeas petition, directed to the state court of appeals, respondent submits only a California 3rd District Court of Appeal court case docket print-out (essentially unauthenticated), which appears to show that petitioner's habeas application in that court was filed on 6/18/07, and denied on 6/28/07. Lod. Doc. 4. A similar case docket print-out is submitted to show that petitioner's habeas petition to the state supreme court was docketed as filed on 8/20/07, and denied on 2/13/08. Lod. Doc. 5. The petition filed in this court is file-stamped to indicate it was filed on 2/29/08.
Respondent acknowledges that the superior court habeas petition shows petitioner dated the petition 2/12/07, more than a month before the 3/14/07 projected AEDPA deadline. MTD, pp. 4-5. Respondent correctly notes that petitioner did not actually provide a proof of service; on the other hand, at the time of filing the motion, respondent, in light of the mailbox rule, acknowledges that respondent's requests for any records of state court or prison mailing /endorsed proofs service had not ...