FINDINGS & RECOMMENDATIONS
Petitioner is a former state prisoner proceeding without counsel on a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. Respondent moves to dismiss on the ground that the petition is untimely. Petitioner, in opposition, argues that he is entitled to statutory tolling and that he is actually innocent of the crime for which he was convicted. For the reasons explained below, the court finds that respondent's motion must be granted.
On November 13, 2001, petitioner was convicted of assault with force likely to cause great bodily injury and a number of sentencing enhancements were found true. Am. Pet. ("Pet.") at 2. Petitioner was sentenced to a determinate state prison term of nine years. Id.; Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodged Doc.") 1. On April 30, 2003, the California Court of Appeal, Third Appellate District, affirmed the judgment. Lodged Doc. 2; Pet., Mem. of P. & A. in Supp. Thereof ("Pet.'s P. & A.") at 8. On July 16, 2003, the California Supreme Court denied review. Lodged Doc. 4; Pet.'s P. & A. at 8.
Petitioner subsequently filed three pro se post-conviction collateral challenges. On July 13, 2004, petitioner filed a petition for post-conviction relief in Shasta County Superior Court. Lodged Doc. 5; Pet.'s P. & A. at 8. On August 12, 2004, the superior court partially denied twelve grounds of the petition and ordered further briefing on the remaining three grounds. Lodged Doc. 6; Pet.'s P. & A. at 8. On October 14, 2004, the superior court denied the remaining three grounds of the petition. Lodged Doc. 7; Pet.'s P. & A. at 9. Next, on September 22, 2005, petitioner filed a petition for post-conviction relief in the California Court of Appeal, Third Appellate District. Lodged Doc. 8. On October 20, 2005, the court of appeal denied the petition. Lodged Doc. 9; Pet.'s P. & A. at 9. Thereafter, on May 16, 2006, petitioner filed a petition for post-conviction relief in the California Supreme Court. Lodged Doc. 10. On August 30, 2006, the supreme court denied the petition. Lodged Doc. 11; Pet.'s P. & A. at 9-10. Petitioner filed the instant action on May 14, 2007.
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 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). 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." 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. 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. United States District Court (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. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
On July 16, 2003, the California Supreme Court denied review. Lodged Doc. 4. The state appeal process became "final" within the meaning of § 2244(d)(1)(A) when the time for filing a petition for writ of certiorari expired ninety days later, on October 14, 2003. Supreme Ct. R. 13; Bowen, 188 F.3d 1157. The one-year limitations period commenced running the following day. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Thus, petitioner had until October 14, 2004 to file his federal habeas petition. However, petitioner did not file a petition in federal court until May 14, 2007. Absent tolling, petitioner's application in this court is over two-and-a-half years late.
The limitations period ran from date the judgment became final until June 29, 2004, the date the first state petition was filed under the mailbox rule.*fn1 Lodged Doc. 5. Thus, at the time the first state petition was filed, 259 days of the one-year limitations period had elapsed.
As conceded by respondent, petitioner is entitled to statutory tolling for the period during which his first state petition was pending. Resp.'s Mot. to Dism. at 4. The first state petition was pending for a period of 107 days, from June 29, 2004, the date it was filed, until October 14, 2004, the date it was denied. Statutory tolling for this time extended the limitations period from October 14, 2004, to January 30, 2005. As noted, the instant petition was not filed until May 14, 2007.
The next question is whether petitioner is entitled to interval tolling for the time period between the superior court's denial of habeas relief on October 14, 2004 and the filing of the petition in the appellate court on September 22, 2005, a period exceeding 11 months. Respondent argues that this period should not be tolled because petitioner unreasonably delayed in filing the second petition. Resp.'s Mot. to Dism. at 4; see also Saffold, 536 U.S. 214 (finding that where a petitioner unreasonably delays between state court petitions, there is no tolling for that intervening period). Thus, respondent argues, the instant petition should be dismissed as untimely because the statute of limitations ran during the time between the denial of the ...