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). Petitioner filed an opposition to the motion (Doc. 11).
Respondent brings this motion on the grounds that the petition for writ of habeas corpus is successive, filed beyond the one-year statute of limitations, and is fully unexhausted.*fn1
Petitioner claims he should be entitled to equitable tolling, the court should not have dismissed his previous petitions, but instead should have advised him of the stay and abeyance option, and that he is actually innocent.
Petitioner filed his current petition on August 23, 2007, in the United States District Court for the Northern District of California, challenging his 1998 conviction and sentence from the Sacramento County Superior Court. Upon motion from the Respondent, the Northern District transferred the case to this court, where venue is proper. Beyond direct appeal, petitioner has filed nine state post-conviction collateral challenges to his conviction and sentence. The first was filed on December 14, 1998 in the California Supreme Court. This petition for writ of habeas corpus was denied on April 28, 1999. He then filed a habeas petition on April 28, 1999 in the Sacramento County Superior Court, which was denied on June 4, 1999; in the California Court of Appeal on July 2, 1999, which was denied on July 15, 1999; and a petition for review in the California Supreme Court on July 23, 1999, which was denied on August 25, 1999. Petitioner then filed additional habeas petitions in the Sacramento County Superior Court on September 29, 1999, which was denied on November 1, 1999, and on December 10, 1999, which was denied on January 18, 2000. Additional petitions were filed in the California Court of Appeal on February 3, 2000, which was denied on February 24, 2000, in the California Supreme Court on March 23, 2000, which was denied on June 28, 2000, and in the Sacramento County Superior Court on July 19, 2000, which was denied on August 16, 2000.
Petitioner has also filed two additional petitions for writ of habeas corpus in this court. The first was filed on February 5, 1998, which was dismissed for failure to exhaust on October 13, 1998. The second was filed on December 15, 2000, and was dismissed as untimely on March 30, 2004, which was affirmed on appeal.
I. 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 before April 24, 1996 -- the effective date of the statute of limitations -- the one-year period begins to run the day after the effective date, or April 25, 1996. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999).
The limitations period is tolled, however, for the time a properly filed application for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2). To be "properly filed," the application must be authorized by, and in compliance with, state law. See Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 128 S.Ct. 2 (2007); Pace v. DiGuglielmo, 544 U.S. 408 (2005) (holding that, regardless of whether there are exceptions to a state's timeliness bar, time limits for filing a state post-conviction petition are filing conditions and the failure to comply with those time limits precludes a finding that the state petition is properly filed). A state court application for post-conviction relief is "pending"during all the time the petitioner is attempting, through proper use of state court procedures, to present his claims. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). It is not, however, considered "pending" after the state post-conviction process is concluded. See Lawrence v. Florida, 127 S.Ct. 1079 (2007) (holding that federal habeas petition not tolled for time during which certiorari petition to the Supreme Court was pending). Where the petitioner unreasonably delays between state court applications, however, there is no tolling for that period of time. See Carey v. Saffold, 536 U.S. 214 (2002). If the state court does not explicitly deny a post-conviction application as untimely, the federal court must independently determine whether there was undue delay. See id. at 226-27.
There is no tolling for the interval of time between post-conviction applications where the petitioner is not moving to the next higher appellate level of review. See Nino, 183 F.3d at 1006-07; see also Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001). There is also no tolling for the period between different sets of post-conviction applications. See Biggs v. Duncan, 339 F.3d 1045 (9th Cir. 2003). Finally, the period between the conclusion of direct review and the filing of a state post-conviction application does not toll the limitations period. See Nino, 1983 F.3d at 1006-07.
Here, petitioner's conviction became final on March 3, 1998. He filed his first state habeas petition on December 14, 1998. His last state habeas petition was denied on August 16, 2000. Even assuming the statute of limitations was tolled for the entire time between the filing of his first state habeas petition and the denial of his ninth and last state habeas petition, which respondent refutes, his federal habeas petitions are untimely.
Petitioner filed a federal habeas petition in this court on December 15, 2000, case number 01-CV-1449-GEB-KJM.*fn2 At the time of filing this previous federal petition, petitioner had used over nine months of his one year statute of limitations prior to filing his first state petition (March 4, 1998 through December 14, 1998). Then following the denial of his last state petition, on August 16, 2000, he waited four months before filing his federal petition (August 17, 2000 through December 15, 2000). Accordingly, his previous petition was dismissed as filed beyond the applicable statue of limitations. Petitioner appealed this decision, and the Ninth Circuit affirmed the judgment on September 6, 2005.
The undersigned agrees with the finding and determination that petitioner's previous federal petition was untimely. That determination was made in 2004. The current petition challenges the same conviction and sentence. The passage of an additional four years prior to the filing of the ...