FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondents move to dismiss the petition as untimely. For the reasons explained below, the motion must be granted.
On October 4, 1999, petitioner was convicted of various offenses and sentenced to a term of 13 years and 8 months in prison. Petition ("Pet."), at 1; Resps.' Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc."), 1. He filed an appeal, but on May 16, 2000, before the appellate court issued a decision, he filed a request to withdraw that appeal. Lodg. Doc. 2. On May 16, 2000, the appellate court granted the request to withdraw and dismissed the appeal. Lodg. Doc. 3.
On January 26, 2007, the petitioner filed a state petition for a writ of habeas corpus in the state trial court.*fn1 Lodg. Doc. 4. The trial court denied that petition on April 17, 2007, in a decision that ruled on the merits. Lodg. Doc. 5. On May 23, 2007, petitioner filed an application for a writ of habeas corpus in the state appellate court. Lodg. Doc. 6. That court denied petition, also ruling on the merits. Lodg. Doc. 7. Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court on June 12, 2007. Lodg. Doc. 8. That court denied relief on November 14, 2007. Lodg. Doc. 9.
Petitioner filed his federal habeas petition on January 13, 2008.
II. Statute of Limitations
The limitations period for filing a federal petition for habeas corpus is governed by 28 U.S.C. § 2244(d)(1), which provides:
(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.
The 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). "[A]n application is properly filed when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post conviction application is "pending" during the intervals between a lower court decision and the filing of 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).
The United States Supreme Court has recognized that a habeas petitioner "seeking equitable tolling bears the burden of establishing 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 ...