FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner with counsel seeking a writ of habeas corpus. See 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 three counts of lewd or lascivious acts on a child under the age of 14, four counts of the forcible commission of that crime, and one count of the attempted commission of that crime. Resp.'s Mot. To Dism., Docs Lodged in Supp. Thereof ("Lodg. Doc."), 1. He was sentenced to an aggregate term of 15 years in state prison. Lodg. Doc. 2. The judgment was affirmed on January 25, 2005. Id. Petitioner did not file a petition for review in the California Supreme Court.
Petitioner filed three habeas petitions in California courts. On June 9, 2005, petitioner filed a habeas petition in the Sacramento County Superior Court. Lodg. Doc. 3. On October 3, 2005, the petition was denied. Lodg. Doc. 4. Petitioner then filed a second petition in the California Court of Appeal, Third Appellate District on May 30, 2006. Lodg. Doc. 5. It was denied on September 28, 2006. Finally, petitioner filed a third petition in the California Supreme Court on May 25, 2007. Lodg. Doc. 7. It was denied on November 28, 2007.
Petitioner filed this action on December 1, 2008.*fn1
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). Under California law, a judgment is final on direct view when the time to file a petition for review in the California Supreme Court has expired, or 40 days from the date that the appellate court affirmed the judgment of conviction. Cal. Rules of Court, Rules 8.264, 8.500.
The limitation 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). But the period is statutorily 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). 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 post-conviction motion 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). A motion that is untimely under a State's rules is not properly filed. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (emphasis in original); see also Saffold, 536 U.S. at 226. California, however, has no clear rule governing the time for filing post-conviction motions. Instead, "a state prisoner may seek review of an adverse lower court decision by filing an original petition (rather than a notice of appeal) in the higher court, and that petition is considered timely if filed within a 'reasonable time.'" Saffold, 536 U.S. at 221; In re Harris, 855 P.2d 391, 398 n.7 (Cal. 1993) (habeas petition "must be filed within a reasonable time after the petitioner or counsel knew, or with due diligence should have known, the facts underlying the claim as well as the legal basis of the claim."). The United States Supreme Court has held that for an unexplained delay of six months or more, lower federal courts need not determine whether a California court would have found a habeas petition timely because as a matter of federal law, it cannot be deemed to have been "pending"under Saffold. Evans v. Chavis, 546 U.S. 189, 201 (2006).
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 statute of limitations may also be equitably tolled. The Ninth Circuit's standard for 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. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). A habeas petitioner seeking equitable tolling must establish two elements: that he has been pursuing his rights diligently, and that some extraordinary circumstance stood in his way. Pace, 544 U.S. at 418.
In order for counsel's misconduct to constitute an extraordinary circumstance, it must be "sufficiently egregious." Spitsyn v. Moore, 345 F.3d 796, 798, 800 (9th Cir. 2003). This generally excludes situations in which post-conviction counsel has been careless or negligent. For example, the United States Supreme Court has rejected the argument that a mistake by state post-conviction counsel in calculating the limitations period entitles a petitioner to equitable tolling, explaining:
If credited, this argument would essentially equitably toll limitations periods for every person whose attorney missed a deadline. Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the post-conviction ...