FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This action proceeds on the October 18, 2008 petition.*fn1 Respondent moves to dismiss this action on the ground that it is untimely. Petitioner opposes, asserting that he can show that he is entitled either to statutory tolling or equitable tolling because of his mental illness. For the reasons explained below, the court finds that respondent's motion must be granted.
Procedural History Pursuant to a plea of guilty, petitioner was convicted of possession for sale of cocaine base and possession for sale of cocaine. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc."), 1. Based on the crimes and several enhancements, petitioner was sentenced to six years in prison on February 1, 2006. Id. He did not appeal. As detailed below, however, he did file eight habeas petitions in California courts.
Petitioner filed three habeas petitions before he was sentenced. The first he filed on September 24, 2005, in the Sacramento County Superior Court, which was denied on November 2, 2005. Lodg. Docs. 2, 3. He filed a second habeas petition in the same court on December 21, 2005. Lodg. Doc. 4. The court denied that petition on February 6, 2006. Lodg. Doc. 5. He filed a third petition for habeas relief on December 29, 2005. Lodg. Doc. 6. That petition was denied on February 6, 2006.
Following his conviction and sentencing, petitioner filed five habeas petitions. On February 9, 2006, he filed a habeas petition in the Sacramento County Superior Court, claiming the trial court violated his due process rights by failing to hold a hearing to determine whether to strike one of the allegations that petitioner previously had been convicted of a serious felony. That strike was used by the prosecution to seek an enhanced sentence. Lodg. Doc. 10. He filed another habeas petition in the Sacramento County Superior court on February 23, 2006, claiming that the denial of a preliminary hearing violated his due process rights, and further claiming that his counsel was ineffective by failing to file a motion to suppress and by failing to request a hearing to determine whether one of the strike allegations should be dismissed. Lodg. Doc. 12. That court denied relief on April 19, 2006, on the ground that petitioner failed to demonstrate any due process violation or that his counsel rendered ineffective assistance in failing to seek a hearing on the strike allegations. Lodg. Docs. 11, 13.
In May 2007 petitioner appears to have lost what assistance he was receiving from another inmate. Some on petitioner's filings include references to the petitioner in the third person. It appears from those references that petitioner was not preparing all of his legal documents himself. Rather, a fellow prisoner was assisting him although the extent of the assistance is not clear from the record. That prisoner committed suicide in May of 2007. Lodg. Doc. 28, at unnumbered page 10. The interruption of assistance, however, did not prevent petitioner from filing legal papers. Even after the death of the assisting inmate, petitioner continued to file pleadings. On May 28, 2007, petitioner filed a habeas petition in the California Supreme Court claiming that the California Department of Corrections and Rehabilitation ("CDCR") was violating his plea agreement by failing to give him the time credits to which the plea agreement entitled him. Lodg. Doc. 14. On June 11, 2007, petitioner told a psychologist that he still did not have his legal documents. Lodg. Doc. 28, at unnumbered page 12. On June 26, 2007, before the California Supreme Court could resolve petitioner's habeas application, petitioner returned to the Sacramento County Superior Court with another habeas petition. Lodg. Doc. 16. Petitioner claimed that on May 24, 2007, the Clerk of the Sacramento County Superior Court unconstitutionally denied him access to transcripts of the proceedings leading to his conviction.*fn2 Id. Relief was denied on August 14, 2007, on the ground that petitioner had failed to state a prima facie case. Lodg. Doc. 17.
The California Supreme Court denied habeas relief on October 10, 2007. Lodg. Doc. 15. Shortly thereafter, dissatisfied with the trial court's ruling on his request for transcripts, petitioner sought reconsideration on October 20, 2007. Lodg. Doc. 18. That court considered the motion in some detail and denied it on December 11, 2007. Lodg. Docs. 19. Petitioner filed his last habeas petition on October 8, 2007, in the Sacramento County Superior Court, claiming that his conviction was illegal based on new case law holding that "the courts cannot [sic] hold me to a [sic] enhancement's [sic] in a guilty plea." Lodg. Doc. 20, at 3. The petition was denied on November 8, 2007, on the ground that petitioner failed to show he was entitled to any relief. Lodg. Doc. 21.
Petitioner filed his federal petition on October 18, 2007.
II. Petitioner's Mental Health Status
The record contains a great deal of evidence about petitioner's mental illness. Petitioner submits medical records showing that he suffers from schizoaffective disorder,*fn3 which presumably causes him to hear the two distinct voices he identifies as Steve and John. Pet'r Opp'n, Exh. A ("Opp'n, Exh. A"), at unnumbered pages 2-6. He has suffered from mental disorders of some sort since childhood. He reported to a prison psychiatrist that he has heard the voices of "Steve" and "John" since elementary school. Id. at unnumbered page 2. Petitioner consistently reported has to prison mental health professionals that he likes his voices, they comfort him, and he does not want medication to eliminate them completely. On the other hand, when petitioner was under stress, the voices added to that stress. Lodg. Doc. 25, 26.
On April 10, 2006, prison mental health staff diagnosed petitioner as suffering from schizophrenia with paranoia and depression. Lodg. Doc. 23, unnumbered page 1. On June 12, 2006, petitioner reported that the medications were not working properly. Id. at 4. He was exhausted and his voices were "messing with [him]." Id. As of July 5, 2006, petitioner was at the CCCMS*fn4 level of care, but threatened to stop taking his medication in order to have his classification score lowered so that he would qualify for EOP*fn5 . Lodg. Doc. 24, at unnumbered page 2.
Petitioner believed that his "hot meds," which the court construes to be the psychotropic medications to treat his mental illness, disqualified him for the EOP level of care. Id. He believed that if he could lower his classification points to the EOP level, he would be transferred to California State Prison - Solano, which was located closer to his family. Id. By the time petitioner met with a psychiatrist on July 25, 2006, he had been without medication for about three weeks. Id. at 13. He explained to the psychiatrist the reason for not taking his medication. Id. At the psychiatrist's urging, petitioner began taking his medications again while the psychiatrist looked into the possibility of a transfer. Id. Even though petitioner began to take the medications again, prison officials changed his designation to the EOP level of care. Id. at 14. By August 7, 2006, petitioner was taking his medication daily as directed, but was anxious, paranoid and tearful. Lodg. Doc. 25, at unnumbered page 2. Throughout August and September, petitioner continued to take his medications and to report that his voices were a comfort to him. Id. at 3-4. At some point, petitioner was transferred to the California Medical Facility ("CMF"), where he was diagnosed with schizophrenia, undifferentiated type. Lodg. Doc. 25, at unnumbered page 15. Throughout September and October of 2006, petitioner was depressed, continued to hear voices and suffered from anxiety. Id. at 15-39. It is not clear when mental health staff at CMF decided that petitioner's symptoms justified a diagnosis of schizoaffective disorder, but that is the "controlling diagnosis" noted on records dated December 6, 2007. Opp'n, Exh. A, at 2.
III. Statute of Limitations
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). In California, conviction pursuant to a plea of guilty becomes final after the time for filing an appeal has expired, i.e. 60 days. California Rules of Court, rule 8.308. 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 ...