FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. On October 30, 2008, the court denied respondent's motion to dismiss without prejudice, and granted petitioner leave to file an amended petition. On December 1, 2008, petitioner filed a second amended petition. Thereafter, respondent moved to dismiss this action upon the ground it is untimely. Petitioner opposes, asserting that he is entitled to statutory and/or equitable tolling. For the reasons explained below, the court finds that respondent's motion should be granted.
On April 18, 2002, petitioner was convicted of several counts of sexual assault and sentenced to serve a term of 38 years to life in state prison. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodged Docs.") 1, 2. He appealed, and on April 30, 2003, the appellate court affirmed the judgment. Id. at 2. He then filed a petition for review of this judgment in the California Supreme Court, which that court denied on July 9, 2003. Id. at 3, 4. Petitioner subsequently filed six state post-conviction collateral challenges, the earliest of which he filed on January 13, 2005.*fn2 Id. at 5, 7, 10, 12, 14, 16. Petitioner filed this action on July 3, 2007.
II. Statute of Limitations
A one-year limitation period for seeking federal habeas relief begins to run from the latest of the date the judgment became final on direct review, the date on which a state-created impediment to filing is removed, the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review or the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). The judgment on direct review becomes final when the 90-day limit for filing a petition for certiorari expires. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999).
The limitations period "is not tolled from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). The period is tolled once a petitioner properly files a state post-conviction application, and remains tolled for the entire time that application is "pending." 28 U.S.C. § 2244(d)(2) (statutory tolling). In California, a properly filed post-conviction application is "pending" during the intervals between a lower court decision and filing a new petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002). A federal habeas application does not toll the limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
Additionally, the United States Supreme Court has recognized that a habeas petitioner may be entitled to equitable tolling if he establishes two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). In light of this pronouncement, the Ninth Circuit has reiterated that the threshold necessary to trigger equitable tolling is very high, and clarified that equitable tolling only applies where a petitioner shows that despite diligently pursuing his rights, some external force caused the untimeliness. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009).
Petitioner has the burden of showing facts entitling him to statutory and to equitable tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
On July 9, 2003, the California Supreme Court denied review. Lodged Doc. 4. The state appeal process became "final" within the meaning of § 2244(d)(1)(A) when the time for filing a petition for writ of certiorari expired ninety days later, on October 7, 2003. Supreme Ct. R. 13; Bowen, 188 F.3d 1157. The one-year limitations period commenced running the following day. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).*fn3 Thus, petitioner had until October 7, 2004 to file his federal habeas petition. However, petitioner did not file a petition in federal court until July 3, 2007. Absent tolling, petitioner's application in this court is over two-and-a-half years late.
According to petitioner, he is entitled to statutory and/or equitable tolling. However, petitioner did not file any state post-conviction applications during the one-year limitations period. Therefore, petitioner is not entitled to statutory tolling. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (once limitations period ends, subsequently filed state court petition will not revive it).
Furthermore, equitable tolling is applicable only "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Roy v. Lampert, 455 F.3d 945, 950 (9th Cir. 2006). Specifically, the prisoner must show that the extraordinary circumstances were the cause of his untimeliness. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Equitable tolling is justified in few cases, as the threshold necessary to trigger such tolling is very high. Id. The petitioner bears the burden of showing that he is entitled to equitable tolling, and the determination whether such tolling applies is a fact-specific inquiry. Id.
Petitioner contends that from July 9, 2003, when the California Supreme Court denied his petition, to the present, petitioner "began filing all known/available court papers to address his illegal sentence, as well as his conviction." Pet'r Opp'n at 2. Petitioner asserts that the documents he sought were necessary to prove his claims. Pet'r Surreply at 2, Pet'r Decl. in Supp. Thereof ("Pet'r Decl.") at 2. Petitioner's argument lacks the specificity required to account for the two and a half year delay, or really, any portion of that delay. Rather, petitioner generally asserts that he is entitled to tolling because he diligently sought, over the course of several years, certain documents that he insists were necessary to prove his claims. Although not detailed in his opposing papers, the record in this action reflects that petitioner did in fact request "trial files" from the trial court and redacted copies of the jury questionnaires used during voir dire from the appellate court. Lodged Doc. 5 at 6, 6A, Ex. H (March 29, 2004 denial of request for trial files), Ex. I (December 20, 2004 denial of June 2004 request for jury questionnaires). However, it is not clear when petitioner requested the "trial files," or why petitioner waited almost nine months after the statute of limitations started running to request the jury questionnaires. Aside from theses two motions, there is no indication that petitioner otherwise sought the requested documents. On this record, the court cannot conclude that petitioner diligently pursued his rights. Moreover, petitioner fails to explain why he could not file his petition without these documents. Thus, petitioner has not shown that some external force caused his untimeliness.
Similarly, petitioner's argument that his six state post-conviction challenges evidence his diligence also fails. See Pet'r Surreply at 1. Petitioner's argument is conclusory and completely lacking in factual support. Petitioner did not file his first state post-conviction petition until January 13, 2005, over three months after the statute of limitations ended. See Lodged Doc. 5. There is also an unexplained gap exceeding one-and-a-half years between petitioner's second and third petitions. See id. at 9 (second petition denied on December 13, 2005), 12 (third petition filed on July 3, 2007).*fn4 Once again, the record does not ...