The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Pending before the court is respondent's motion to dismiss, filed on 7/24/08, to which petitioner has filed an opposition, after which respondent filed a reply.
The instant petition was filed by an order of transfer from the Fresno Division of the Eastern District in this court on 6/10/08 (docket # 3); the petition is file-stamped as filed on 6/06/08, however, by application of the mailbox rule,*fn2 the petition is deemed as filed on 5/28/08. Petitioner challenges an Amador County Superior Court conviction for which he claims to have been sentenced, on 10/04/01, to a six-year state prison term. Petition, p. 1.*fn3 Petitioner states that he was charged with damaging a prison or jail in amount in excess of $400.00 and for battery on a non-confined person, but he pled guilty to destruction of prison property, pursuant to Cal. Penal Code § 4600(a), and the battery count was stayed. Id. Petitioner alleges the following grounds for his challenge: 1) involuntary plea; 2) prosecution's failure to disclose evidence (Brady violation)*fn4 ; 3) violation of his Fifth Amendment right against self-incrimination; 4) ineffective assistance of counsel.*fn5 Id., at 4-14.
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) was enacted. Respondent moves for dismissal on the ground that the petition is barred by the one-year AEDPA statute of limitations. Motion to Dismiss (MTD), pp. 1-5. AEDPA amended 28 U.S.C. § 2244(d)(1) so that it now 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.
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 any period of limitation.
Following petitioner's guilty plea, on 7/25/01, to damaging a prison or jail with special allegations, petitioner was sentenced, on 10/04/01, to a six-year determinate state prison term. MTD, p. 1; respondent's Lodged Document (Lod. Doc.) 1. Although petitioner attempted to appeal his sentence, he later requested dismissal of the appeal, and the state court of appeal thereafter dismissed the appeal, on 3/11/02. MTD, pp. 1-3, Lod. Docs. 2 & 3. Under Cal. Rules of Court, rule 8.264(b)(2)(B),*fn6 "[t]he dismissal of an appeal on request or stipulation" is "final in that court on filing...." Pursuant to Cal. Rules of Court, rule 8.500(a),*fn7 petitioner would have been permitted to file a petition for review in the state supreme court "of any decision of the Court of Appeal....," and, under rule 8.500(e)(1), was allowed to do so "within 10 days after the Court of Appeal decision is final in that court ...."
As petitioner evidently did not seek review in the state supreme court (MTD, p.3), the time for filing a petition for review expired ten days later, on 3/21/02, the date on which the judgment became final within the meaning of § 2244(d)(1)(A). See Hemmerle v. Schriro, 495 F.3d 1069, 1074 (9th Cir. 2007) (where petitioner failed to file a petition for review in the state supreme court, his direct appeal became final on the date the time for seeking review in that court expired). Thus, on 3/22/02, one day after the decision on direct review ...