Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties have consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). On August 5, 2002, petitioner pled guilty to the manufacture of methamphetamine, possession of methamphetamine, and possession of ammunition by a felon and admitted a prior strike conviction. (Lod. Docs. 1-2.) Petitioner was sentenced to a determine state prison term of sixteen years and eight months. (Id.) This matter is before the court on respondents' motion to dismiss. Respondent contends that petitioner's claims are barred by the statute of limitations and must be dismissed.
I. Statute of Limitations
Section 2244(d) of Title 28 of the United States Court contains a statute of limitations for filing a habeas petition in federal court:
(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.
(2) The time during which a properly filed application for State post- conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244. The following facts are relevant to the statute of limitations analysis.
1. On December 11, 2003, the judgment was affirmed by the California Court of Appeal, Third Appellate District. (Lod. Doc. 2.)
2. Petitioner sought review in the California Supreme Court, which was denied on February 18, 2004. (Lod. Docs. 3-4.)
3. Petitioner filed a petition for writ of certiorari in the United States Supreme Court on May 3, 2004, which was denied on October 4, 2004. (Lod. Doc. 5.)
4. On June 1, 2006, petitioner signed a petition for writ of habeas corpus,*fn1 which was filed in the Tehama County Superior Court. (Lod. Doc. 6.) That petition was summarily denied on August 8, 2006. (Lod. Doc. 7.)
5. On October 15, 2006, petitioner signed a petition for writ of habeas corpus that was filed in the California Court of Appeal, Third Appellate District. (Lod. Doc. 8.) The Court of Appeal denied the ...