The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed the original petition on May 16, 2007, in the United States District Court for the Northern District of California. Petitioner challenges his 2001 conviction for one count of forcible lewd acts upon a minor and five counts of non-forcible lewd acts. Petitioner is serving a sentence of 30 years to life.
On August 4, 2008, respondent filed a motion to dismiss on grounds that this action is barred by the statute of limitations. Following the November 13, 2008, hearing on the motion, the court determined that an evidentiary hearing was required to address the equitable tolling issues of 1) petitioner's ability to speak, read or write English; and 2) lockdowns at the prison. On November 18, 2008, the court denied respondent's motion to dismiss without prejudice to its consideration following resolution of the factual issues at the evidentiary hearing.
On April 20, 2009, the evidentiary hearing was held regarding this motion. Accordingly, the court reinstates respondent's motion to dismiss. While the issue of equitable tolling is close, after carefully considering the record, the court recommends that the motion be denied.
The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(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 retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
On June 18, 2003, the California Supreme Court denied petitioner's petition for review. Respondent's Exhibit F. Petitioner's conviction became final ninety days from June 18, 2003, or September 16, 2003, when the period for petitioning the United States Supreme Court for certiorari expired. Bowen v. Roe, 188 F.3d 1157, 1158-1159 (9th Cir. 1999). Petitioner had one year from that date to file a timely federal petition. The instant action, filed May 16, 2007, is not timely unless petitioner is entitled to statutory or equitable tolling.
Section 2244(d)(2) provides that the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation.
Petitioner's first state habeas petition was filed in the Sacramento County Superior Court. Respondent's Exhibit G. The petition is file stamped October 25, 2004, but signed by petitioner on October 18, 2004. Id. The petition does not contain a proof of service. Id. On December 9, 2004, the Superior Court denied the petition. Id., Exhibit H. On February 3, 2005, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. Respondent's Exhibit I. On February 24, 2005, the California Court of Appeal denied this petition. Respondent's Exhibit J. On April 7, 2005, petitioner filed a habeas corpus petition in the California Supreme Court. Id., Exhibit K. On March 15, 2006, the California Supreme Court denied the petition. Id., Exhibit L.
On July 19, 2006, petitioner filed another habeas corpus petition in the Sacramento County Superior Court. Id., Exhibit M. On August 29, 2006, the Superior Court denied this petition. Id., Exhibit N. On October 26, 2006, petitioner filed a second petition in the California Supreme Court. ...