FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. Respondents move to dismiss the petition on the grounds that petitioner failed to exhaust the available state remedies, and that the petition is untimely. For the reasons explained below, the motion must be granted.
Petitioner was convicted of murder and robbery and sentenced to life without the possibility of parole on March 12, 2004. Resps.' Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Docs."), Lodg. Doc. 1. He appealed, and the judgment was affirmed. Lodg. Doc. 2. Petitioner sought review in the California Supreme Court, presenting the following issues:
(1) whether the jury instruction*fn1 permitting consideration of flight evidence may be given over a defense objection; (2) whether the jury misunderstood the instructions*fn2 concerning the joint operation of actus reus and culpable mental state as referring to only one of the two counts; (3) whether, given that the jury instructions must be viewed as a whole, it can ever be demonstrated that error in a particular instruction is prejudicial and not harmless; (4) whether admission of photographs showing defendant's allegedly irrelevant and unduly prejudicial tattoos violated due process; (5) whether a claim of cruel and unusual punishment under the Eighth Amendment to the United States Constitution is forfeited when it is not presented at the time of sentencing; and (6) whether a claim of cruel and unusual punishment may be rejected based on viewing the evidence in the light most favorable to the prosecution rather than viewing the evidence as a whole. Lodg. Doc. 3. The California Supreme Court denied review on October 19, 2005. Lodg. Docs. 3, 4.
Thereafter, petitioner sought post-conviction review in the state courts. On April 26, 2006, he filed*fn3 a petition for a writ of habeas corpus in the trial court. Lodg. Doc. 5. As a basis for relief, he asserted that the evidence was insufficient to support the jury's findings of guilt on the murder charge and that the robbery was committed during the murder. Id. Having reviewed the merits of petitioner's claims, the court denied relief on May 30, 2006. Lodg. Doc. 6. On July 30, 2007, petitioner filed a second petition for post conviction relief in the trial court. Lodg. Doc. 7. In it, petitioner claimed that trial counsel was ineffective for failing to object to photographs of his tattoos. Id. The court found that the petition was an abuse of the writ because petitioner merely recast the claim from his first petition as a challenge to counsel's ineffectiveness, but in any event petitioner failed to demonstrate he was entitled to relief. Lodg. Doc. 8. Thus, the court denied the petition on August 30, 2007. Id. On March 9, 2006, petitioner filed a request in the trial court seeking an order appointing counsel to assist him in obtaining DNA testing pursuant to state law. See Cal. Penal Code § 1405(b)(1).
Petitioner filed his initial petition in this action on September 14, 2007. The only basis alleged for it is that trial counsel was ineffective for having failed to object to prejudicial evidence about petitioner's membership in a gang.
II. Exhaustion of Available State Remedies
The basic standards for exhaustion are well-settled. A district court may not grant a petition for a writ of habeas corpus unless "the applicant has exhausted the remedies available in the courts of the State," or unless there is no State corrective process or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by presenting the "substance of his federal habeas corpus claim" to the state courts. Picard v. Connor, 404 U.S. 270, 278 (1971) (no exhaustion where the petitioner presented operative facts but not legal theory to state courts); see also Duncan v. Henry, 513 U.S. 364, 365 (1995)(to exhaust a claim, a state court "must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution"). A claim is unexhausted if any state remedy is available. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (petitioner must seek discretionary review from state court of last resort); Roberts v. Arave, 874 F.2d 528, 529 (9th Cir. 1988) (no exhaustion where state supreme court referred petitioner's appeal of trial court's denial of post-conviction relief to lower appellate court and petitioner failed to appeal lower court's disposition of that appeal to state supreme court). Unless the respondent specifically consents to the court entertaining unexhausted claims, a petition containing such claims must be dismissed. See 28 U.S.C. § 2254(b)(3); Picard, 404 U.S. at 275. For a California prisoner to exhaust, he must present his claims to the California Supreme Court on appeal in a petition for review or on post-conviction in a petition for a writ of habeas corpus. See Carey v. Saffold, 536 U.S. 223, 239-40 (2002) (describing California's habeas corpus procedure); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (to exhaust, prisoner must present claims on appeal to California Supreme Court in a petition for review).
Here, the only filing in the California Supreme Court was the petition for review of the appellate court's decision on direct review. As discussed above, none of the issues in either of the petitioner's habeas applications were presented to the California Supreme Court. Petitioner asserts that the trial court's denial of relief on the second petition as second or successive and on the merits demonstrates that further state court filings would have been "wasteful and pointless." Petr.'s Opp'n, at 4. In essence, petitioner argues that it would have been futile to present his claims about the insufficiency of the evidence and counsel's ineffectiveness to the highest court in California. However, futility is not an excuse for failure to exhaust. See Engle v. Isaac, 456 U.S. 107, 130 (1982); see also Noltie v. Peterson, 9 F.3d 802, 805-806 (9th Cir. 1993). Therefore, the court finds that petitioner failed to exhaust the available state remedies, and respondents' motion must be granted on this ground.
III. Statute of Limitations
Respondents also contend that this action must be dismissed on the ground that the federal application is untimely. As discussed below, the petition was filed on September 19, 2007, and absent tolling, the one year limitations period for filing this federal petition expired on January 17, 2007. 28 U.S.C. § 2244(d)(1)(A).
Congress has imposed a one-year limitation period for seeking federal habeas relief, which begins to run from the latest of the date the judgment became final on direct review, the date on which a state-created impediment to filing is removed, the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review or the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). The judgment on direct review becomes final when the 90-day limit for filing a petition for certiorari expires. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). The period "is not tolled from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). However, the period is tolled for 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 . . . ." 28 U.S.C. § 2244(d)(2). In California, a properly filed post conviction application is "pending" during the intervals between a lower court decision and filing a new petition in a higher court. Saffold, 536 U.S. at 223. Petitioner has the burden of showing facts entitling him to tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002) (statutory tolling).
Under Ninth Circuit precedent, equitable tolling is available to habeas petitioners who file their federal petition beyond the one-year limitations period. Calderon v. United States District Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en banc). The United States Supreme Court has yet to weigh in on this question, but has found that assuming such toling is available, the petitioner has the burden of demonstrating that he diligently has been pursuing his rights and that some extraordinary circumstance stood in his way. Pace v. Diguglielmo, 544 U.S. 408, 418 (2005); see also Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (petitioner has burden of demonstrating facts that entitle him to equitable tolling). In this circuit, a district court may grant equitable tolling when external, ...