ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 17, 2008, the undersigned ordered respondent to file and serve a response to the petition. On January 30, 2009, respondent filed the pending motion to dismiss, arguing that petitioner's habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has not filed an opposition to the motion.*fn1
On June 28, 2004, a Sacramento County Superior Court jury convicted petitioner of second-degree murder and assault on a police officer. The jury also found a sentencing enhancement allegation to be true. On September 10, 2004, petitioner was sentenced to an indeterminate term of sixteen years to life in state prison. On January 26, 2006, the California Court of Appeal for the Third Appellate District affirmed the judgment of conviction. On April 12, 2006, the California Supreme Court denied review. (Pet. at 2; Resp't's Lodged Docs. 1-4.)
Petitioner subsequently filed three state habeas petitions. On July 3, 2007, he filed a petition for writ of habeas corpus in the Sacramento County Superior Court which was denied on August 28, 2007. On September 18, 2007, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District which was denied on October 4, 2007. Finally, on April 8, 2008, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On September 17, 2008, the California Supreme Court denied the petition. (Resp't's Lodged Docs. 5-11.) On October 2, 2008, petitioner commenced this action by filing a federal petition for writ of habeas corpus.
RESPONDENT'S MOTION TO DISMISS
Respondent has filed a motion to dismiss arguing that petitioner's federal habeas petition is time-barred. Specifically, respondent argues that on April 12, 2006, the California Supreme Court denied petitioner's petition for review, causing petitioner's judgment of conviction to become "final" on July 11, 2006, after the time for filing a petition for writ of certiorari expired. Respondent argues that the one-year statute of limitations for filing a federal habeas petition began to run the following day, on July 12, 2006, and expired one year later on July 11, 2007. (Resp't's Mot. to Dismiss at 3.)
Respondent acknowledges that the proper filing of a state post-conviction application challenging a judgment of conviction tolls the one-year statute of limitations period. However, respondent argues that petitioner did not file his first state habeas petition in the Sacramento County Superior Court until July 3, 2007, after 356 days had already elapsed under the statute of limitations. Respondent does not dispute that petitioner properly filed his first as well as his second state habeas petitions and is entitled to tolling for the pendency of those petitions. However, respondent argues that petitioner unreasonably delayed in filing his next state petition with the California Supreme Court and is not entitled to tolling for the 186 days between the California Court of Appeal's denial and the filing of his habeas petition in the California Supreme Court. Accordingly, respondent concludes that the statute of limitations expired well before petitioner filed his federal petition on October 2, 2008. (Resp't's Mot. to Dismiss at 4-6.)
I. The AEDPA Statute of Limitations
On April 24, 1996, Congress enacted AEDPA which amended 28 U.S.C. § 2244 by adding the following provision:
(d) (1) 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 ...