Petitioner, a California state prisoner who is currently confined out of state at a private prison in Eloy, Arizona, is proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the sixteen year determinate prison sentence imposed upon him by the Butte County Superior Court following his conviction on three counts of first degree residential robbery with an enhancement for personal use of a firearm. Relying on the United States Supreme Court's decision in Cunningham v. California, 549 U.S. 270 (2007), petitioner claims that the imposition of the upper term sentence in his case violated his right to a trial by jury.
Before the court is respondent's January 5, 2009, motion to dismiss the petition on the grounds that it was filed beyond the applicable one-year statute of limitations. (Doc. No. 10.) When petitioner failed to file a timely opposition to that motion, the court issued an order directing petitioner to do so. (Doc. No. 15, filed May 4, 2009.) Subsequently, petitioner requested an extension of time to oppose the motion, explaining that he had been moved to an out-of-state institution and did not have access to his legal materials. (Doc. No, 16.) The court granted petitioner's requests and on June 22, 2009, petitioner filed his "Traverse To Answer" (Doc. No. 18, hereinafter "Opp'n"), which the court has construed as his opposition to the pending motion to dismiss.
According to information and documents provided by respondent and uncontested by petitioner, the following is a chronology of petitioner's state court proceedings:
On December 6, 2002, petitioner was convicted in the Butte County Superior Court of three counts of first degree residential robbery with a finding that he had personally used a firearm as to all counts. (Resp't's Lod. Docs. 1-2.)*fn1 On January 27, 2003, petitioner was sentenced to state prison for a determinate term of sixteen years. (Id.)
On December 24, 2003, the California Court of Appeal for the Third Appellate District affirmed that judgment of conviction. (Resp't's Lod. Doc. 2.) Petitioner did not file a petition for review with the California Supreme Court.
Petitioner subsequently filed three state habeas petitions in which he challenged the constitutionality of his sentence on the same grounds raised in the petition now pending before this court. In this regard, on March 20, 2007, petitioner filed his habeas petition with the Butte County Superior Court. (Resp't's Lod. Doc. 3.) On March 22, 2007, that petition was denied. (Resp't's Lod. Doc. 4.)
On April 18, 2007, petitioner filed a habeas petition with the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. 5.) The petition was summarily denied on April 26, 2007. (Resp't's Lod. Doc. 6.)
On June 5, 2007, petitioner filed a habeas petition with the California Supreme Court. (Resp't's Lod. Doc. 7.) That petition was summarily denied on October 10, 2007. (Lod. Doc. 8.)
On December 14, 2007, petitioner filed his federal habeas petition in this court.
II. The Arguments of the Parties
Respondent move to dismiss the federal habeas petition on the grounds that it is time-barred. In this regard, respondent argues that the statute of limitations for the filing of a federal habeas petition began to run on February 3, 2004, following the expiration of the time period during which petitioner could have filed a petition for review with the California Supreme Court on appeal. (MTD at 3.) According to respondent, the limitations period for the filing of a federal habeas petition expired one year later, on February 2, 2005. (Id.) Respondent asserts that petitioner's state habeas petitions were filed after the federal statute of limitations had expired, and therefore do not toll the applicable statute of limitations. (Id.)
Petitioner opposes the motion to dismiss, asserting that his federal habeas petition is timely because "there have been no state procedural defaults" and respondent has failed to carry his burden of pleading and proving such a default. (Opp'n at 2.) In addition, petitioner argues that the timeliness issues should have been raised when he filed his state habeas petitions. (Id.) Lastly, petitioner contends that he did not receive the trial transcripts from his appellate attorney until "a year later after the California Supreme Court hearing in state court" and that extended lock-downs prevented him from accessing the law library at his place of confinement. (Id. at 2 and 4.) In this latter respect, he states "Petitioner filed his [federal] petition December 14, 2007 after he was sent to another prison where he had the opportunity to have access to a legal library which was in Folsom state ...