The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondents' motion to dismiss (Doc. 13) this petition as untimely.
Petitioner was convicted of sexual assault on a child and other crimes and sentenced to 39 years to life in state prison. Petitioner's direct appeal was denied by the California Court of Appeal on February 8, 2006, and the California Supreme Court denied direct review on April 19, 2006. Petitioner did not seek certiorari by the United States Supreme Court.
Petitioner filed three pro se state court post-convictions actions.*fn1 On June 15, 2006, petitioner filed a habeas corpus petition in the Sacramento County Superior Court, which was denied on August 2, 2006. On December 16, 2006, petitioner filed a petition in the California Court of Appeal, which was denied on February 1, 2007. On May 21, 2007, petitioner filed a petition in the California Supreme Court, which was denied on October 10, 2007. The instant federal petition was filed on July 10, 2008.*fn2
Respondents argue that the instant federal petition is untimely. Federal habeas corpus petitions must be filed within one year from the later of: (1) the date the state court judgment became final; (2) the date on which an impediment to filing created by state action is removed; (3) the date on which a constitutional right is newly-recognized and made retroactive on collateral review; or (4) the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court judgment becomes final by the conclusion of direct review or expiration of the time to seek direct review. See 28 U.S.C. § 2244(d)(1).
Where a petition for review by the California Supreme Court is filed and no petition for certiorari is filed in the United States Supreme Court, the one-year limitations period begins running the day after expiration of the 90-day time within which to seek review by the U.S. Supreme Court. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Where no petition for review by the California Supreme Court is filed, the conviction becomes final 40 days following the Court of Appeal's decision, and the limitations period begins running the following day. See Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002). If no appeal is filed in the Court of Appeal, the conviction becomes final 60 days after conclusion of proceedings in the state trial court, and the limitations period begins running the following day. If the conviction became final before April 24, 1996 -- the effective date of the statute of limitations -- the one-year period begins to run the day after the effective date, or April 25, 1996. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999).
The limitations period is tolled, however, for the time a properly filed application for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2). To be "properly filed," the application must be authorized by, and in compliance with, state law. See Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 128 S.Ct. 2 (2007); Pace v. DiGuglielmo, 544 U.S. 408 (2005) (holding that, regardless of whether there are exceptions to a state's timeliness bar, time limits for filing a state post-conviction petition are filing conditions and the failure to comply with those time limits precludes a finding that the state petition is properly filed). A state court application for post-conviction relief is "pending"during all the time the petitioner is attempting, through proper use of state court procedures, to present his claims. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). It is not, however, considered "pending" after the state post-conviction process is concluded. See Lawrence v. Florida, 549 U.S. 327 (2007) (holding that federal habeas petition not tolled for time during which certiorari petition to the Supreme Court was pending). Where the petitioner unreasonably delays between state court applications, however, there is no tolling for that period of time. See Carey v. Saffold, 536 U.S. 214 (2002). If the state court does not explicitly deny a post-conviction application as untimely, the federal court must independently determine whether there was undue delay. See id. at 226-27.
There is no tolling for the interval of time between post-conviction applications where the petitioner is not moving to the next higher appellate level of review. See Nino, 183 F.3d at 1006-07; see also Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001). There is also no tolling for the period between different sets of post-conviction applications. See Biggs v. Duncan, 339 F.3d 1045 (9th Cir. 2003). Finally, the period between the conclusion of direct review and the filing of a state post-conviction application does not toll the limitations period. See Nino, 1983 F.3d at 1006-07.
In this case, petitioner did not seek certiorari by the United States Supreme Court. Therefore, the limitations period began to run the day after expiration of the 90-day period to seek certiorari, or on July 19, 2006. Respondents concede that petitioner is entitled to statutory tolling for the time each of his three state court actions were pending. Therefore, the one-year limitations period was tolled for the following time periods: (1) July 19, 2006, through August 2, 2006 (pendency of first petition); (2) December 16, 2006, through February 1, 2007 (pendency of second petition); and (3) May 21, 2007, through October 10, 2007 (pendency of third petition).
Respondents argue that petitioner is not entitled to statutory tolling for the two intervals between petitioner's three state court petitions. Specifically, respondents argue petitioner unreasonably delayed in filing his second and third state court actions. The record reveals that petitioner waited 135 days after the first state court petition was denied before filing his second petition in the California Court of Appeal. Petitioner waited 108 days after the second petition was denied before filing the third petition.
The court agrees with respondents that these periods of delay were unreasonable and, therefore, petitioner is not entitled to interval tolling for these period of time. See Carey, 536 U.S. 214; see also Evans v. Chavis, 546 U.S. 189, 201 (2006) (observing that 30 to 60 days would normally be reasonable). Numerous judges who have considered this issue agree that a delay far shorter than the 135-day and 108-day delays involved here is unreasonable. See Contreras v. Curry, 2008 WL 4291473 (N.D. Cal. 2008) (involving 88-day delay); Livermoore v. Watson, 2008 WL 802330 (E.D. Cal. 2008) (involving 78-day delay); Hunt v. Felker, 2008 WL 364995 (E.D. Cal. 2008) ...