The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY
Petitioner Roosevelt Marsh III ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). On October 14, 2008, Respondent V.M. Almager ("Respondent") filed a Motion to Dismiss. On November 7, 2008, Petitioner filed his opposition. On November 13, 2008, United States Magistrate Judge Cathy Ann Bencivengo issued a Report and Recommendation ("Report"), recommending that this Court grant the motion. On December 12, 2008, Petitioner filed his objection to the Report. By order dated June 15, 2009, this Court adopted the Report and granted Respondent's Motion to Dismiss with prejudice. Petitioner now requests a Certificate of Appealability ("COA"). For the reasons discussed below, the Court DENIES Petitioner's COA request.
The following factual background is taken from this Court's order, dated June 15, 2009, adopting Magistrate Judge Bencivengo's Report, granting the motion to dismiss, and denying Petitioner's request for relief. (See Doc. No. 15 [the "Order"].)
On November 14, 2001, a jury convicted Petitioner of assault, in violation of California Penal Code § 245(a)(1), with a further finding that Petitioner inflicted great bodily injury on the victim, within the meaning of Penal Code § 12022.7(a). Petitioner admitted to a previous strike, a serious felony prior, and a prison prior. Petitioner was sentenced to sixteen years in state prison.
Petitioner appealed. On January 22, 2003, the California Court of Appeal denied his appeal, and on April 30, 2003, the California Supreme Court denied his petition for review.
On December 10, 2003, Petitioner filed a habeas petition in the San Diego Superior Court that was denied on January 8, 2004. On November 1, 2004, Petitioner filed a petition in the California Court of Appeal, which was denied on December 7, 2004. On January 5, 2005, Petitioner attempted to file a petition in the California Supreme Court, but it was rejected due to lack of an original signature. The petition was presumably re-filed at a later date and summarily denied on March 15, 2006.
On April 27, 2006, Petitioner filed a federal habeas petition, which was dismissed without prejudice on May 11, 2006. See Marsh v. Giurbino, S.D. Cal. Civil Case No. 06cv961 WQH (LSP).
On February 28, 2007, Petitioner commenced a second round of state collateral review in the San Diego Superior Court. On April 19, 2007, the petition was denied. On May 10, 2007, Petitioner filed a petition in the court of appeal, which was denied on July 31, 2007. On August 26, 2007, Petitioner filed a petition in the California Supreme Court that was denied on March 12, 2008.
On June 7, 2008, Petitioner commenced his second federal habeas proceeding. On October 14, 2008, the government filed a motion to dismiss, arguing that the Petition was time barred. On November 13, 2008, Judge Bencivengo issued the Report recommending that the Court grant the motion. The Report found that the Petition was time barred as it far exceeded the one-year statute of limitations provided by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254 ("AEDPA"), and it did not qualify for a sufficient amount of statutory or equitable tolling to render it timely.
On December 12, 2008, Petitioner filed his objection to the Report. Petitioner argued that the Petition was timely because the Report incorrectly determined the amount of tolling warranted. Petitioner also seemed to argue that his claim based on Cunningham v. California, 549 U.S. 270 (2007), was timely because the second round of state habeas petitions began on February 28, 2007, which was within one year of that decision.
On June 15, 2009, this Court issued the Order denying the Petition. (See Doc. No. 15.) In the Order, the Court declined to apply both statutory and equitable tolling to the 297 days elapsed between the Superior Court's denial of Petitioner's first state habeas petition and the subsequent filing of the petition with the appellate court. Furthermore, the Court held that even if the 297 days of tolling was applied, the Petition was still time barred. Finally, the Court denied Petitioner's argument for a new statute of limitations, because Cunningham did not represent a "newly recognized" constitutional right as required by the AEDPA. See 28 U.S.C. § 2244(d)(1)(C).
On July 20, 2009, Petitioner filed his request for COA. For the following reasons, the ...