Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court on respondents' motion to dismiss this action as barred by the statute of limitations.*fn2
Section 2244(d)(1) of Title 28 of the United States Code provides: 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.
28 U.S.C. § 2244(d)(1). Section 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" the limitations period. 28 U.S.C. § 2244(d)(2). "The time that an application for state post-conviction review is 'pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law." Evans v. Chavis, 546 U.S. 189, 191 (2006)(emphasis in original).
In California, "a state prisoner may seek review of an adverse lower court decision by filing an original petition (rather than a notice of appeal) in the higher court, and that petition is timely if filed within a 'reasonable time.' " . . . . Thus, in California, "[a]s long as the prisoner filed a petition for appellate review within a 'reasonable time,' he could count as 'pending' (and add to the one-year time limit) the days between (1) the time the lower state court reached an adverse decision, and (2) the day he filed a petition in the higher state court."
Waldrip v. Hall, 548 F.3d 729, 734 (quoting Evans, at 192-93 and 193). "An unexplained delay of six months between the denial by one California state court and a new filing in a higher California court" is "too long to permit tolling of the federal limitations period on the ground that state court proceedings were 'pending.'" Id. at 735.
For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:
1. On August 29, 2000, petitioner was sentenced to seventeen years in prison following his conviction on charges of first degree burglary and receiving stolen property.
2. On November 28, 2001, petitioner's conviction was affirmed on direct appeal by the California Court of Appeal for the Third Appellate District.
3. On February 13, 2002, the California Supreme Court denied petitioner's petition for review.
4. On May 6, 2002, a petition signed by petitioner on April 9, 2002 was filed a petition for writ of habeas corpus in the Sacramento County Superior Court. See Lodged Document 7, lodged November 18, 2008.*fn3 That petition contained the claims identified as Claims I, II, III, V-A, ...