ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 7, 2009, the undersigned ordered respondent to file and serve a response to the petition. On June 11, 2009, respondent filed the pending amended motion to dismiss, arguing that petitioner's habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has not filed an opposition to the motion.*fn1
On January 30, 1997, a Butte County Superior Court jury convicted petitioner of first degree residential robbery. The jury also found that petitioner personally used a firearm during the commission of the robbery. Pursuant to the jury's verdict, the trial court sentenced petitioner to a determinate term of sixteen years in state prison. On January 13, 1998, the California Court of Appeal for the Third Appellate District affirmed petitioner's judgment of conviction. Petitioner did not seek review with the California Supreme Court. (Pet. at 2; Resp't's Lodged Docs. 1-2.)
Petitioner subsequently filed six petitions seeking habeas relief in state court. In this regard, on September 18, 1998, he filed a petition for writ of habeas corpus in the Butte County Superior Court which was denied on September 22, 1998. On October 11, 1998, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District which was denied on October 29, 1998. On November 17, 1998, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was denied on May 26, 1999. (Resp't's Lodged Docs. 3-8.) On December 1, 1998, petitioner filed another habeas petition with the Butte County Superior Court which was denied on December 16, 1998. On July 4, 2007, petitioner filed a second petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District which was denied on July 12, 2007. Finally, on July 26, 2007, petitioner filed another habeas petition in the California Supreme Court which was denied on January 23, 2008. (Resp't's Lodged Docs. 9-14.)
On January 29, 2008, petitioner commenced this action by filing a federal petition for writ of habeas corpus with this court.
RESPONDENT'S MOTION TO DISMISS
Respondent has filed a motion to dismiss arguing that petitioner's federal habeas petition is time-barred. Specifically, respondent argues that on January 13, 1998, the California Court of Appeal affirmed petitioner's conviction, causing his judgment of conviction to become "final" forty days thereafter, on February 22, 1998, after the time for seeking review in the California Supreme Court expired. Respondent argues that the one-year statute of limitations for the filing of a federal habeas petition began to run the following day, on February 23, 1998, and expired one year later on February 22, 1999. (Resp't's Mot. to Dismiss at 3.)
Respondent acknowledges that the proper filing of a state post-conviction application challenging a judgment of conviction tolls the one-year statute of limitations period. Respondent argues, however, that petitioner did not file his first state habeas petition until 208 days had elapsed under the statute of limitations. Respondent concedes that petitioner is entitled to tolling for the time that his first, second, and third habeas petitions were pending in the state courts at each successive level. However, respondent argues that petitioner's fourth state habeas petition has no tolling consequence because it was pending in the Butte County Superior Court at the same time his third habeas petition was pending in the California Supreme Court. (Resp't's Mot. to Dismiss at 4.)
Granting petitioner the benefit of tolling for the time that his first, second, and third habeas petitions were pending before the state courts, respondent contends that the one-year statute of limitations for the filing of a federal habeas petition expired on November 1, 1999. Respondent notes that petitioner did not file his federal petition until more than eight years later, on January 29, 2008. Finally, although petitioner filed his fifth and sixth habeas petitions in state court, those filings occurred after the federal statute of limitations had expired and do not restart the clock at zero or otherwise save petitioner's claims from being time-barred. Accordingly, respondent concludes that petitioner's federal petition for writ of habeas corpus now pending before this court is untimely and should be dismissed with prejudice. (Resp't's Mot. to Dismiss at 5-6.)
I. The AEDPA Statute of Limitations
On April 24, 1996, Congress enacted AEDPA which amended 28 U.S.C. § 2244 by adding the following provision:
(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 ...