The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the original petition filed December 23, 2008. Petitioner challenges his 2006 conviction for the prison disciplinary of possession of manufactured alcohol in violation of Cal. Code Regs. tit. 15, § 3016.
Pending before the undersigned is respondent's March 9, 2009, motion to dismiss on grounds that this action is barred by the statute of limitations. After carefully reviewing the record, the court recommends that respondent's motion be granted.
The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(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.
In actions challenging prison disciplinary convictions, the statute of limitations runs from the date the administrative appeal is denied. Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004). In the instant case, on December 11, 2006, a Director's Level Appeal Decision was issued denying petitioner's final administrative appeal. Petition, Exhibit B. Petitioner had one year from that date, i.e. until December 11, 2007, to file a timely federal petition. The instant action is not timely unless petitioner is entitled to statutory or equitable tolling.
The time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d)(2). On November 20, 2007, petitioner filed a habeas corpus petition in Superior Court challenging the at-issue disciplinary conviction. Petition, Exhibit C. On January 9, 2008, the Superior Court denied the petition. Petition, Exhibit C. On April 16, 2008, petitioner filed a habeas petition in the California Court of Appeal. Petition, Exhibit D. On April 24, 2008, the California Court of Appeal denied the petition. Petition, Exhibit D. On May 2, 2008, petitioner filed a habeas corpus petition in the California Supreme Court. Petition, Exhibit E. On May 21, 2008, the California Supreme Court denied the petition. Petition, Exhibit E.
Petitioner's state petitions were pending for 183 days. Adding 183 days to December 11, 2007, would make petitioner's federal petition due on June 11, 2008. The instant petition is still not timely.
The undersigned next considers whether petitioner is entitled to equitable tolling. "Generally, a litigant seeking equitable tolling bears the burden of establishing 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, 12 S.Ct. 1807, 1814; Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (a habeas petitioner bears the burden of proving that equitable tolling should apply to avoid dismissal of an untimely petition). "Equitable tolling is unavailable in most cases," and is only appropriate "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miranda, supra, at 1066 (internal quotations/citations omitted [emphasis added in Miranda]). A petitioner must reach a "very high" threshold "to trigger equitable tolling [under AEDPA]...lest the exceptions swallow the rule." Id. The Ninth Circuit has held that claims of ignorance of the law and illiteracy do not constitute such extraordinary circumstances and are insufficient to justify equitable tolling. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); see also Hughes v. Idaho State Bd. Of Corrections, supra, 800 F.2d at 909 (9th Cir. 1986) (pro se prisoner's illiteracy and lack of knowledge of the law unfortunate but insufficient to establish cause).
In his opposition, petitioner argues that he is entitled to equitable tolling because he could not begin his state habeas proceedings until November 2007 due to inadequate law library access. Petitioner contends that the law library was closed on the following dates in 2007: January 5, 8, 12, and 16; February 1, 5, 13, 15, 16, 20, 22, and 28; March 1, 9, 12, 15 and 21; the entire month of April 2007; May 9 and 17; June 17, 19, 25, 27, 28; July 5, 8, 17, 18, 19, 24, 25; August 1, 7, 18, 20; September 5, 12; October 3, 11, 13; November 1, 3, 8, 9, 13, 22 and 24. Petitioner also alleges that from November 5-6, 2007, he was denied law library access because the prison was ...