FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is respondent Sisto's motion to dismiss this action on the ground that it is barred under the applicable one-year statute of limitations.
On November 5, 2002, a Butte County Superior Court jury found petitioner guilty of first degree murder and found a firearm discharge causing death enhancement allegation to be true. (Pet. at 2.) Petitioner was sentenced to two consecutive terms of 25 years to life. (Id.)
On February 9, 2005, the California Court of Appeal for the Third Appellate District affirmed petitioner's judgment of conviction. (Id. at 26.) On May 11, 2005, the California Supreme Court summarily denied a petition for review filed on petitioner's behalf. (Lod. Doc. 3.)
On March 3, 2006, petitioner filed a petition for writ of habeas corpus with the Butte County Superior Court. (Lod. Doc. 4.) The petition was denied on March 6, 2006. (Lod. Doc. 5.) On March 30, 2006, petitioner filed his habeas petition with the California Court of Appeal for the Third Appellate District. (Lod. Doc. 6.) The petition was summarily denied on April 6, 2006. (Lod. Doc. 7.) On May 9, 2006, petitioner filed a habeas petition with the California Supreme Court. (Lod. Doc. 8.) The petition was denied on December 13, 2006. (Lod. Doc. 9.) According to the California Supreme Court's docket, it appears that the mailed denial of the petition was returned to the court marked as "unable to forward" on January 8, 2007 and the returned mail was re-sent to petitioner on July 26, 2007. (Id.)
On February 8, 2008 petitioner signed his federal habeas petition and it was received by this court for filing on February 11, 2008.
Respondent argues that the federal habeas petition should be dismissed as untimely. Respondent contends that petitioner's judgment of conviction became final on August 9, 2005, 90 days after his petition for review was denied by the California Supreme Court. Counsel argues that the statute of limitations thus began to run on August 10, 2005, and continued to run until it was tolled on March 3, 2006 by petitioner's filing of his habeas petition with the Butte County Superior Court. (Mot. to Dismiss (MTD) at 5.) Therefore, according to respondent, the statute of limitations ran for 206 days and petitioner then had 159 days left on the one-year limitations period. (Id.) Respondent contends that tolling of the statute of limitations for filing a federal petition ended on December 13, 2006 when the California Supreme Court denied petitioner's habeas petition filed with that court. (Id.) Under respondent's calculation, the statute of limitations ran for 159 days following the December 13, 2006, denial of the petition for review until it expired on May 22, 2007. (Id.) Respondent contends that since petitioner did not file his federal petition until February 11, 2008, he has exceeded the one-year period by almost nine months. (Id.)
In opposing the motion to dismiss, petitioner advances several arguments. First, petitioner argues that he was not aware of the California Supreme Court's ruling until July 28, 2007. (Pet'r Opp'n, Mem. P. & A. (Pet'r P&A) at 1.) Second, he contends that he did not have "the record to work from, as well as his own mental defects (no medications) and property receipt delays, from June 12, 2007 through August of 2007 also contributed to the delay [in filing his federal petition]." (Id.) Third, he contends that there was fraud upon the court and that this should prevent any statute of limitations bar. (Id. at 2.) In this regard, petitioner asserts that,
[t]he detective in this case lied and failed to inform the court during a hearing to suppress Petitioner's confession, that as a matter of law, Petitioner was not free to leave the police interrogation room during a non-Mirandized interrogation, because the detectives had already obtained a warrant for Petitioner's arrest, and they were duty-bound to execute that warrant, as a matter of law. (Id. at 3.) Fourth, petitioner asserts that he is actually innocent of the crime for which he was convicted. (Id. at 4.) Petitioner contends that he suffers from post-traumatic stress disorder, chronic alcoholism and drug addiction and that counsel never investigated or addressed his mental disability at trial. (Id. at 4.) Thus, he argues that "[i]t is reasonably likely that Petitioner was not guilty by reason of insanity of mental defect at the time of the crime and he is legally and actually innocent." (Id.)
III. The Statute of Limitations under the AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a one-year period of limitation applies to a petition for writ of habeas corpus filed in federal court by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1). The period of limitation applies to all federal habeas petitions filed after the statute was enacted. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Because this action was commenced in 2008, the AEDPA period of limitation is applicable to the petition.
Pursuant to 28 U.S.C. § 2244(d)(1), the statute of limitations shall run from the latest of:
(A) date on which judgment became final by the conclusion of direct review ...