FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is respondent's motion to dismiss the petition as untimely filed. Petitioner has filed an opposition to that motion.
Petitioner challenges his 2002 conviction in the Sacramento County Superior Court on charges of felony assault (California Penal Code § 254(a)(1) - count one), forcible rape (California Penal Code § 261(a)(2) - count two), threatening a witness (California Penal Code § 136.1(c)(1) -count three), felony battery (California Penal Code § 24 (d) - count four), and making criminal threats (California Penal Code § 422 - count five). The jury also found that petitioner had inflicted great bodily injury in the commission of the assault (California Penal Code § 12022.7(e)). Petitioner was sentenced to an aggregate term of ten years and eight months in state prison. (Mot. to Dismiss (MTD), Ex. A at 1.)
Petitioner appealed from his conviction to the California Court of Appeal for the Third Appellate District. On February 24, 2005, the judgment of conviction was affirmed. (Id., Ex. A at 6.)
Petitioner then filed a petition for review with the California Supreme Court. On May 11, 2005, the California Supreme Court denied the petition without prejudice "to any relief to which defendant might be entitled after this court determines in People v. Black, S126182, and People v. Towne, S125677, the effect of Blakely v. Washington (2004) U.S. [,] 124 S.Ct. 2531, on California law." (MTD, Ex. B.)
Petitioner did not file a petition for writ of certiorari with the United States Supreme Court. Nonetheless, the judgment in his case did not became final until after the expiration of the 90-day period within which petitioner could seek certiorari from the United States Supreme Court. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Thus, the judgment became final on August 9, 2005.
On November 3, 2005, petitioner's habeas petition was constructively filed with the Sacramento County Superior Court.*fn1 The petition was filed by the court on November 10, 2005. (Id., Ex. C at 1.) On January 17, 2006, the petition was denied on the merits. (Id., Ex. D.)
On March 28, 2006, petitioner's habeas petition was constructively filed with the California Supreme Court.*fn2 The petition (Case No. S142279) was filed by the court on April 3, 2006. (Id., Ex. E at 1.) On December 13, 2006, the California Supreme Court denied the habeas petition without comment.*fn3
On September 10, 2007, petitioner signed his federal habeas petition and it was filed by this court on September 17, 2007. On August 13, 2008, petitioner filed an amended petition which is the operative petition in this action.
Respondent contends that the one-year statute of limitation for the filing of a federal habeas petition in this case began to run on August 9, 2005, when petitioner's judgment of conviction became final, and continued to run for 86 days until November 3, 2005, the date of the proof of service on petitioner's habeas petition filed with the Sacramento County Superior Court. (MTD at 3.) Respondent argues that petitioner is not entitled to statutory tolling for the period between the Superior Court's denial of that petition on January 18, 2006 and petitioner's filing of his habeas petition with the California Supreme Court on March 27, 2006, because the interval between those two events exceeded 60 days. (Id.) Therefore, according to respondent, the statute of limitations ran for another 68 days from January 18, 2006 to March 27, 2006. At that point, respondent calculates, petitioner had used 154 days (86 68 = 154) of the one-year statute of limitations, leaving him only 211 days to file his federal habeas petition. (Id. at 4.) The California Supreme Court denied the habeas petition before it on December 13, 2006, and according to respondent the statute of limitations expired 211 days later on July 12, 2007. (Id.) Respondent concludes that because petitioner did not sign his federal habeas petition until September 10, 2007, this action is untimely by approximately two months. (Id.)
In opposing the motion to dismiss, petitioner argues that the interval between the Sacramento County Superior Court's denial of his habeas petition and the filing of his habeas petition with the California Supreme Court was not unreasonable and should be subject to statutory tolling.*fn4 (Opp'n at 2.) Petitioner asserts that the California Supreme Court did not find his petition to be untimely and instead denied it on the merits. (Id.) Citing the U.S. Supreme Court's decision in Evan v. Chavis, 546 U.S. 189 (2006), petitioner argues that his 71-day delay in filing his next state habeas petition is, in any event, not "'far longer'" than the 60 days referred to by the court in that case. (Opp'n at 3.) Petitioner also contends that he is entitled to equitable tolling. (Id.) In this regard, petitioner has submitted a declaration in which he explains that following the California Supreme Court's denial of his petition for review, he had spinal surgery on August 25, 2005 and was taking medications that made him "constantly drowsy and absent-minded." (Id., Decl. at 1-2.) Petitioner also states that he is an immigrant from Russia and is functionally illiterate. (Id., Decl. at 1.) He explains that he sought help from another inmate but had difficulty communicating with him when he was moved to another part of the facility after his habeas petition was denied by the Sacramento County Superior Court. (Id., Decl. at 2.) Petitioner also claims that he had difficulty obtaining access to the law library to have copies necessary to the filing of his petitions made. (Id. at 2-3.)
III. The Statute of Limitations under the AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a one-year period of limitation applies to a petition for writ of habeas corpus filed in federal court by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1). The period of limitation applies to all federal habeas petitions filed after the statute was enacted.
Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Because this action was commenced in 2007, the AEDPA period of limitation is ...