The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties have consented to the jurisdiction of the undersigned. See court file documents 6, 9.
Petitioner challenges his 2005 conviction for corporal injury on a child. He is serving a sentence of 18 years and 4 months. This action is proceeding on the original petition filed July 20, 2009, as to the following claims: 1) his sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004) and Cunningham v. California, 549 U.S. 270 (2007); 2) the sentencing court failed to state its reasons for imposing consecutive sentences.
Pending before the court is respondent's September 28, 2009, motion to dismiss on grounds that this action is barred by the statute of limitations. For the following reasons, respondent's motion is 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 petitioner's state proceedings, on November 21, 2006, the California Court of Appeal ordered the trial court to prepare a corrected abstract of judgment and affirmed the judgment. Respondent's Lodged Document 2. Petitioner did not file a petition for review in the California Supreme Court. Under California law, petitioner's conviction became final on December 31, 2006, i.e. 40 days after the California Court of Appeal filed its opinion. See Cal. Rules of Court, Rule 8.264 (formerly Cal. Rules of Court, Rule 24), Cal. Rules of Court Rule 8.500 (formerly Cal. Rules of Court, Rule 28). Petitioner had one year from that date, i.e. until December 31, 2007, to file a timely petition. 28 U.S.C. § 2244(d)(1)(A). The instant action is not timely unless petitioner is entitled to statutory or equitable tolling.
28 U.S.C. § 2254(d)(2) provides that 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 section.
On May 29, 2007, petitioner filed a motion for sentence modification in the San Joaquin County Superior Court. Respondent's Lodged Document 4. On June 5, 2007, the Superior Court denied the motion without comment or citation. Id., no. 5. On July 10, 2007, petitioner filed a habeas corpus petition in the California Court of Appeal. Id., no. 6. On July 12, 2007, the California Court of Appeal denied this opinion. Id., no. 7. On June 16, 2008, petitioner filed a habeas corpus petition in the California Supreme Court. Id., no. 8. On December 17, 2008, the California Supreme Court denied this petition without comment or citation. Id., no. 9.
Respondent argues that petitioner is not entitled to statutory tolling for the time his motion for sentence modification was pending because it was not timely filed. Respondent argues that pursuant to Cal. Penal Code § 1170, the superior court may, within 120 days after the date of commitment, recall a sentence and commitment previously ordered and resentence the petitioner. After this time, the sentencing court is without jurisdiction to vacate or modify the sentence. Dix v. Superior Court, 53 Cal.3d 442, 464 (1991). Respondent ...