ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. Respondent Ken Clark, Warden of the California Substance Abuse Treatment Facility, moves to dismiss this action on the grounds that it is untimely and that one of petitioner's claims was not properly exhausted. Petitioner concedes that his fourth claim is unexhausted and agrees to dismiss that claim. Petitioner otherwise opposes respondent's motion, arguing that although his habeas petition was filed after the applicable statute of limitations had passed, he is entitled to equitable tolling. For the reasons explained below, the court finds the petition untimely and therefore recommends that it be dismissed.
On September 29, 1998, petitioner pled guilty to being a prisoner in possession of a sharp instrument and was thereafter sentenced to a determinate term of four years. Pet. at 2, 11; Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc.") No. 1. Petitioner did not appeal his conviction. Pet. at 2-3.
On April 14, 2003, petitioner filed his first petition for writ of habeas corpus in Lassen County Superior Court. Lodg. Doc. No. 2. The petition was denied on May 6, 2003. Pet. at 3, Ex. E(1); Lodg. Doc. No. 3. Thereafter, petitioner filed six additional habeas petitions in state court. On August 20, 2003, he filed a petition in the California Court of Appeal for the Third Appellate District, which was denied on September 4, 2003. Pet. at 3, Ex. F; Lodg. Doc. Nos. 4, 5. On October 21, 2003, he filed a petition in the California Supreme Court, which was denied on November 25, 2003. Pet. at 4, Ex. G; Lodg. Doc. Nos. 6, 7.
On November 15, 2005, he filed another petition in Lassen County Superior Court, which was denied on March 2, 2006. Pet. at 3, 56; Lodg. Doc. Nos. 8, 9. On May 19, 2006, he filed a petition in the California Court of Appeal for the Third Appellate District, which was denied on June 1, 2006. Pet. at 3, 59; Lodg. Doc. Nos. 10, 11. On July 15, 2006, he filed a petition in the California Supreme Court, which was denied on February 14, 2007. Pet. at 4, Ex. S; Lodg. Doc. Nos. 12, 13. Finally, on November 6, 2006, he filed a third petition in the California Supreme Court, which was denied on February 14, 2007. Resps.' Lodg. Doc. Nos. 14, 15.
Petitioner filed this action on December 7, 2007, alleging that his 1998 conviction and resulting sentence violate his Sixth Amendment right to a speedy and public trial (Ground #1), his Fourteenth Amendment right to equal protection of the laws (Ground #2), and his Sixth Amendment right to effective counsel (Ground #3), and challenging the California Supreme Court's refusal to rule on the merits of his petition (Ground #4). Pet. at 5-6.
Respondent moves to dismiss the petition on the ground that petitioner's fourth claim was not properly exhausted and a federal court cannot entertain a petition containing both exhausted and unexhausted claims. Resp.'s Mot. to Dism., at 6-7.In response, petitioner requests that his unexhausted fourth claim be deleted or dismissed without prejudice from his petition. Pet'r Mot. to Delete Ground # 4 from Pet. at 1. Accordingly, the petition is deemed amended to reflect dismissal of petitioner's fourth claim. Respondent's argument for dismissal on this ground is therefore moot.
III. Statute of Limitations
Respondent also moves to dismiss the petition as untimely. Resp.'s Mot. to Dism. at 3. Respondent argues that petitioner's last day to file a federal petition was November 28, 1999, and that petitioner is not entitled to either statutory or equitable tolling. Id. at 3-4. Petitioner counters that he is entitled to equitable tolling of the statute of limitations and moves for discovery and an evidentiary hearing regarding his equitable tolling claim. Pet'r Opp'n to Resp.'s Mot. to Dism. ("Opp'n") at 8-9.
A one-year limitation period for seeking federal habeas relief 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 period is tolled once a petitioner properly files a state post conviction application, and remains tolled for the entire time that application is "pending." Id. § 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. Carey v. Saffold, 536 U.S. 214, 223 (2002). A federal habeas application does not toll the limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
A court may grant equitable tolling when "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en banc). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). These circumstances must actually cause the untimeliness. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).
Petitioner has the burden of showing facts entitling him to statutory and to equitable tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. ...