FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently pending before the court is respondent's motion to dismiss this action on the grounds that the petition is second or successive and that it was filed beyond the one-year statute of limitation. See 28 U.S.C. § 2244(b), (d). As explained below, respondent has not shown that the petition is second or successive. However, the petition is untimely. Accordingly, the motion to dismiss must be granted.
On August 15, 1996, petitioner was convicted in the Sacramento County Superior Court of two counts of first-degree burglary. Resp.'s Mot. to Dism. ("Mot."), Docs. Lodged in Supp. Thereof ("Lodg. Doc."), 1. Petitioner was sentenced to a term of 22 years and 8 months in state prison. Lodg. Doc. 2.
Petitioner appealed, and the California Court of Appeal, Third Appellate District, affirmed the judgment on December 15, 1997. Lodg. Doc. 2. Petitioner did not seek review in the California Supreme Court. He then filed seven habeas petitions in California's state courts. The first was filed on December 20, 1998 in the Sacramento County Superior Court and was denied on January 25, 1999. Lodg. Docs. 3, 4. The second was filed in the California Supreme Court on January 15, 1999 and was denied on May 26, 1999. Lodg. Docs. 5, 6. The third was filed in the California Court of Appeal on January 23, 1999 and was denied on March 4, 1999. Lodg. Docs. 7, 8.
Petitioner filed the fourth petition more than eight years later. It was filed on March 29, 2007 in the Sacramento County Superior Court and was denied on May 3, 2007. Lodg. Docs. 9, 10. The fifth petition was filed in the Sacramento Superior Court on May 24, 2007 and was denied on July 27, 2007. Lodg. Docs. 9, 10. The sixth was filed in the California Court of Appeal on August 8, 2007 and was denied on August 16, 2007. Lodg. Docs. 13, 14. Finally, the seventh petition was filed in the California Supreme Court on November 7, 2007 and was denied on April 30, 2008. Lodg. Docs. 15, 16.
Petitioner also filed a federal habeas petition in this court on December 10, 1998. Lodg. Doc. 17. The matter was assigned case number CIV S-98-2383 DFL GGH P. Lodg. Doc 18. The respondent filed a motion to dismiss on February 5, 1999. Lodg. Doc. 19. The action was dismissed on September 9, 1999. Id. Petitioner filed this action on June 1, 2008.*fn2 Pet. at 7.
II. Second or Successive Petition
A petition is second or successive if it makes "claims contesting the same custody imposed by the same judgment of a state court" that the petitioner previously challenged, and on which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007); see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive petition in a district court, a petitioner must obtain from the appellate court "an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). The appellate court may grant permission to file a second or successive petition if the petitioner makes a prima facie showing that the new petition contains a previously unraised claim relying on a new rule announced by the Supreme Court and made expressly retroactive to collateral proceedings. See 28 U.S.C. §§ 2244(b), 2255. Without an order from the appellate court, the district court is without jurisdiction to consider a second or successive petition. See Burton, 549 U.S. 147.
Like the instant action, petitioner's December 10, 1998 habeas petition challenged his August 15, 1996 burglary conviction. Lodg. Doc. 17. On September 9, 1999, this court dismissed petitioner's 1998 habeas action. Lodg. Doc. 19. Petitioner suggests that the petition was dismissed for "technical procedural reasons." Pet'r's Opp'n to Mot. at 3. Respondent submits an order citing the court's June 14, 1999 findings and recommendations, and baldly states that "the judgment was entered denying the petition on the merits." Mot. at 4. While implying that the dismissal was on the merits, the findings and recommendations do not expressly state the grounds for dismissal. Rather, the court wrote: "A motion to dismiss on the merits . . . is inappropriate in habeas actions . . . . Nevertheless, this court has reviewed the issue raised by respondent's motion pursuant to the habeas corpus summary dismissal rules, Rules--Section 2254 Cases, Rules 4 and 8(a). For the reasons set forth in respondent's motion to dismiss, the petition should be denied." See No. CIV S-98-2383 DFL GGH P, Findings and Recommendations, June 14, 1999. Unfortunately, there is no copy of respondent's motion to dismiss in the record. Since respondent has not shown that the dismissal was on the merits, the court cannot determine whether this is a second or successive petition. Accordingly, the motion to dismiss on that basis must be denied.
III. Statute of Limitations
The court will recommend that respondent's motion to dismiss be granted on the ground that the action is untimely. 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 the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Under California law, a judgment is final on direct review 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.
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 toll the limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
The limitations period may also 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. ...