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 October 16, 2008, the undersigned ordered respondent to file and serve a response to petitioner's petition. On November 20, 2008, 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") and that petitioner failed to exhaust his state judicial remedies. Petitioner has not filed an opposition to the motion.*fn1
On February 6, 1998, in the El Dorado County Superior Court, petitioner pleaded no contest to attempted sodomy, sexual penetration with a foreign objection, forcible oral copulation, child endangerment, and two counts of forcible rape. A number of sentencing enhancement allegations were found to be true, and on March 16, 1998, petitioner was sentenced to a determinate term of thirty-nine years and four months in state prison. On March 31, 1999, the California Court of Appeal for the Third Appellate District affirmed the judgment of conviction. Petitioner did not seek review in the California Supreme Court. (Resp't's Lodged Docs. 1-2.)
Petitioner subsequently filed four state habeas petitions. On March 21, 2007, petitioner filed a petition for writ of habeas corpus in the El Dorado County Superior Court and on May 9, 2007, the court denied the petition. On June 6, 2007, petitioner filed a second petition for writ of habeas corpus in the El Dorado County Superior Court. On July 18, 2007, the Superior Court denied that petition. On September 19, 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 18, 2007. Finally, on December 20, 2007, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On June 25, 2008, the California Supreme Court denied the petition. (Resp't's Lodged Docs. 3-10.) On or about September 30, 2008, petitioner commenced this action by filing a federal petition for writ of habeas corpus.
RESPONDENT'S MOTION TO DISMISS
Respondent moves to dismiss the petition before this court arguing that it is time-barred. Specifically, respondent argues that on March 31, 1999, the California Court of Appeal affirmed petitioner's conviction, causing his judgment of conviction to become "final" on May 10, 1999, after the time for filing a petition for review expired. Respondent argues that under AEDPA, the one-year limitations period for filing a federal habeas petition began to run the following day, on May 11, 1999, and expired one year later on May 10, 2000. (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 for filing a federal habeas petition. However, respondent argues that petitioner did not file any of his state habeas petitions until after the statute of limitations for filing a federal petition had expired. Accordingly, respondent concludes that petitioner is not entitled to statutory tolling and that his federal habeas petition is untimely by more than eight years. (Resp't's Mot. to Dismiss at 3-4.)
Respondent also argues that petitioner failed to exhaust the claims presented in the pending petition by presenting them to the highest state court. Specifically, respondent contends that petitioner raises two claims in his federal petition: (1) ineffective assistance of trial counsel, and (2) ineffective assistance of appellate counsel. However, respondent argues that in his petition for writ of habeas corpus filed with the California Supreme Court, petitioner raised only claims relating to ineffective assistance of trial counsel and sentencing error. Thus, respondent concludes that petitioner failed to exhaust his ineffective assistance of appellate counsel claim. (Resp't's Mot. to Dismiss at 4-5.)
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 ...