ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. This action proceeds on the August 22, 2008, petition. Respondent moves to dismiss this action on the ground that it is untimely. Petitioner opposes this motion and requests appointment of counsel. For the reasons stated below, the undersigned denies petitioner's request for counsel and recommends that respondent's motion to dismiss be granted.
Petitioner challenges a nearly ten-year old conviction. Respondent contends that petitioner cannot now challenge his conviction in a federal habeas petition because the one-year limitation period applicable to federal habeas petitions has long since expired. Petitioner contends that the period of time he delayed in filing his petition is subject to equitable tolling which should save his petition. He argues that his counsel failed to file a federal habeas petition or to return his trial transcripts in time for him to file a federal petition and that he was ignorant of the law. He also contends that compliance with the limitations period should be excused because of a fundamental miscarriage of justice, i.e., he was innocent of the crime for which he was convicted. As discussed below, petitioner has not demonstrated that the circumstances of this case warrant equitable tolling. Neither has he demonstrated that he is innocent. Thus, he fails to demonstrate that he is excused from compliance with the statute of limitations. Accordingly, the court recommends that respondent's motion be granted.
Petitioner has requested that the court appoint counsel. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). The court may appointment counsel at any stage of the proceedings "if the interests of justice so require." See 18 U.S.C. § 3006A; see also, Rule 8(c), Rules Governing Section 2254 Cases. The court does not find that the interests of justice would be served by the appointment of counsel at this stage of the proceedings. Thus, his request must be denied.
On February 4, 1997,*fn1 petitioner was convicted of murder and discharging a firearm from a dwelling. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc."), 1. He was sentenced to a term of 25 years to life in prison, plus ten years as an enhancement for personal use of a firearm. Id. Petitioner appealed. Other than striking the enhancement, the appellate court affirmed the judgment on May 24, 1999. Lodg. Doc. 2. Petitioner sought review in the California Supreme Court, Lodg. Doc. 3, which denied review on July 29, 1999. Lodg. Doc. 4.
On some unspecified day in July of 2000, petitioner retained an attorney to review his conviction and determine whether a petition for a writ of habeas corpus should be filed in state court. Pet'r Opp'n, Ex. A at 2. Thereafter, members of petitioner's family gave the attorney transcripts of petitioner's trial. Pet'r Opp'n, Ex. A. Counsel informed them that he would review the documents and speak with petitioner's appellate attorney. Id. After doing these things, counsel advised petitioner's family that he did not believe there were any claims worth pursuing. Id. It is not clear when he so advised them, but counsel had no further contact with them. Id. In a February 1, 2006, letter to petitioner, counsel explained that petitioner had not inquire about or pay additional fees in order that counsel would file a federal habeas petition. Petitioner alleges that for years, he and his family requested the return of his transcripts. Pet'r Opp'n, at 2. Based on the February 1, 2006, letter, it appears that petitioner wrote to counsel. However, there is no evidence of when or that he wrote any other letters. On March 15, 2006, counsel returned the transcripts to petitioner.
Having received his transcripts, petitioner filed a petition for a writ of habeas corpus in the trial court on October 9, 2007. Lodg. Doc. 5. That court denied relief on October 23, 2007, on the ground that petitioner substantially delayed in filing the petition and offered no explanation therefor. Lodg. Doc. 6. On October 31, 2007, petitioner filed a petition for a writ of habeas corpus in the appellate court. Lodg. Doc. 7. That court denied relief November 9, 2007, without citation or explanation. Lodg. Doc. 8. On January 7, 2008, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. Lodg. Doc. 9. Respondent has submitted a docket sheet from that court's web site showing that the petition was denied on July 9, 2008. Lodg. Doc. 10.
Petitioner filed his federal habeas petition on August 14, 2008.
IV. 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 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 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). The Ninth Circuit recognizes the availability of equitable tolling as a doctrine that saves an untimely petition. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner has the burden of showing facts entitling him to statutory and equitable tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
A. Commencement of the ...