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. Respondent moves to dismiss on the ground that this action is untimely. For the reasons explained, the motion must be granted.
Petitioner was convicted of rape on June 27, 2003, and sentenced to a term of six years in prison. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc."), 1. He appealed, and on June 29, 2006, the judgment was affirmed. Lodg. Doc. 2. Petitioner did not file a petition for review in the California Supreme Court.
Petitioner filed several habeas corpus petitions in California's courts. On April 4, 2005, through counsel, he filed a petition for a writ of habeas corpus in the appellate court. Lodg. Doc.
3. On April 7, 2005, that court denied the writ without prejudice to petitioner filing in the trial court. Lodg. Doc. 4. Accordingly, on November 21, 2005, counsel filed a petition for a writ of habeas corpus in the trial court. Lodg. Doc. 5. That court denied relief on December 2, 2005, on the ground that petitioner's direct appeal remained pending. Lodg. Doc. 6. It is not clear when, but petitioner's counsel requested reconsideration of the denial. See Lodg. Doc. 9, Ex. C. The trial court denied the request on February 9, 2006. Id. In a letter dated April 5, 2006, counsel notified petitioner that the trial court had denied the petition. Lodg. Doc. 9, Ex. D. He also informed petitioner that he had requested reconsideration in the trial court, and that the request had been denied. Id. Also in that letter, counsel explained that he intended to file a new petition in the appellate court. Id. Accordingly, on June 22, 2006, petitioner's counsel filed a second petition for a writ of habeas corpus in the appellate court. Lodg. Doc. 7. That court denied relief on July 20, 2006, explaining, "[t]his court takes judicial notice that petitioner's direct appeal was recently decided by this court. Although we do not sanction the trial court's failure to reach the merits in the first instance, we deny the instant petition without prejudice to petitioner refiling in the superior court." Lodg. Doc. 8. Petitioner's counsel did not notify petitioner of this denial. On August 6, 2007, more than one year after counsel had informed petitioner of his intent to file a new petition in the appellate court, petitioner himself filed a petition for a writ of habeas corpus in the California Supreme Court on August 6, 2007. Lodg. Doc. 9. That court denied relief without explanation or citation on January 30, 2008.
Petitioner filed his federal habeas petition on May 7, 2008.
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). Since petitioner did not file a petition for review in the California Supreme Court, the judgment on direct review became final 40 days after the appellate court issued its opinion. Cal. Rules of Court, Rules 8.264, 8.500.
There is no tolling of this one year period "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). However, once a petitioner properly files a state post conviction application the period is tolled, 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 filing a new petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002).
Finally, a federal habeas petition 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 one year limitations period may, in some circumstances, be subject to equitable tolling. 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 of this pronouncement, the Ninth Circuit has clarified its own standard as follows:
The threshold for obtaining equitable tolling is very high, but it applies where a petitioner shows that despite diligently pursuing his rights, some extraordinary circumstance prevented him from timely filing.
Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner has the burden of showing facts entitling him to equitable tolling. Miranda v. ...