FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding with counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss this action on the ground that the petition is untimely. As explained below, the court finds that the petition is untimely and recommends that the motion be granted.
Petitioner was convicted in the Sacramento County Superior Court on January 16, 2004 of attempted murder and assault with a firearm. Resp.'s Mot. To Dism. ("Mot."), Docs. Lodged in Supp. Thereof ("Lodg. Doc.") 1. The judgment included a finding as true a number of sentencing enhancements. Id. The superior court sentenced petitioner to a determinate state prison term of fourteen years, plus an indeterminate term of twenty-five years to life. Id. On November 9, 2004, the California Court of Appeal, Third Appellate District, affirmed the judgment.*fn1 Lodg. Doc. 2. On January 12, 2005, the California Supreme Court denied review. Lodg. Doc. 4. Petitioner did not file any state post-conviction collateral challenges. Mot. at 2, 3; Resp.'s Reply to Opp'n ("Reply") at 1-2.
On November 8, 2005, petitioner timely filed a pro se federal habeas petition in this court. See McKnight v. Runnels, Case No. CIV-S-05-2262 LKK EFB, Dckt. No. 1.*fn2 On February 27, 2006, respondent moved to dismiss the petition on the ground that two of the four claims raised in the petition were unexhausted. Id., Dckt. No. 9. Respondent noted that petitioner could seek a stay and abeyance in order to exhaust his unexhausted claims in state court, and alternatively, that petitioner could amend his petition to include only his exhausted claims. Id., Dckt. No. 9 at 6-7. In response to that motion, petitioner, on March 22, 2006, filed his own motion to dismiss, indicating his preference to return to the state courts to exhaust his claims. Id., Dckt. No. 13. On April 21, 2006, the court recommended that the petition be dismissed without prejudice, noting that petitioner consented to the dismissal and that he did not request that the court hold the matter in abeyance.*fn3 Id., Dckt. No. 14. Neither party objected to the findings and recommendations, which were adopted by the district judge on July 5, 2006.
Id., Dckt. No. 15. Judgment was duly entered. Id., Dckt. No. 16. On August 9, 2006, after retaining counsel, petitioner filed the instant action. Dckt. No. 1.
II. Statute of Limitations
A one-year limitations 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 due diligence. 28 U.S.C.§ 2244(d)(1).
There is no statutory tolling of the limitations period "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). However, once a petitioner properly files a state post-conviction application the period is tolled, 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 provide a basis for statutory tolling. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
The doctrine of equitable tolling serves "to soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court," and to "prevent the unjust technical forfeiture of causes of action." Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008) (internal quotations omitted) (granting equitable tolling where petitioner, in deciding when to file his federal petition, relied in good faith on binding Ninth Circuit precedent that later was overruled). The limitations period may be equitably tolled where a habeas petitioner establishes two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
In light of this pronouncement, the Ninth Circuit has reiterated that the threshold necessary to trigger equitable tolling is very high, and clarified that equitable tolling only applies where a petitioner shows that despite diligently pursuing his rights, some external force caused the untimeliness. 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. ...