The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
The facts regarding tolling here are complicated enough such that after a text analysis of the facts, the court will make a summary chart. However, the legal analysis of statutory tolling is rather simply based on the fact that the first state habeas petition was filed in the state supreme court on the last day of the AEDPA limitations period. Thus, absent equitable tolling, in order to be timely, the federal petition had to be filed on the very day the state supreme court petition was denied. Then, analyzed from an equitable tolling basis, although much of the elapsed time prior to the filing of the federal petition can be equitably tolled because of the conduct of state habeas counsel, petitioner's desire to unnecessarily file further state petitions pro se after he became aware of his counsel's actions dooms his present federal petition. The motion to dismiss on the basis of the AEDPA statute of limitations should be granted.
Petitioner, a state prisoner proceeding pro se, seeks relief in an application pursuant to 28 U.S.C. § 2254. On December 27, 2002, petitioner was sentenced, under the three strikes law, to a total term of 27 years to life for one count of felony evasion of police while in pursuit (25-to-life) plus two consecutive one-year terms for prior convictions. Petition, p. 1, Amended Petition (AP), p. 1; Exh. A, p. 7, to Motion to Dismiss (MTD). Petitioner sets forth the following grounds within his original petition: 1) denial of due process/violation of double jeopardy clause when trial court reneged on plea agreement without sufficient cause forcing petitioner to withdraw his guilty plea; 2) prosecutor wrongly permitted to charge enhancements with life-in-prison exposure after having previously agreed to four-to-eight year maximum sentence; 3) decision to charge petitioner with multiple strikes was in retaliation for his having exercised his constitutional rights; 4) prosecutor violated petitioner's Fourteenth Amendment rights by reneging on a plea deal then using confidential statements made during plea negotiations against petitioner at trial; 5) ineffective assistance of trial and appellate counsel.*fn1
Pending before the court is respondent's March 30, 2009 (docket # 20), motion to dismiss the petition as barred by the AEDPA statute of limitations, to which petitioner filed an opposition, after which respondent filed a reply. Petitioner's response to the reply, typically not a filing contemplated by the applicable rules, will be considered as it contains a subsequent declaration by the same individual whose declaration is included with respondent's reply.
Pending before the court is respondent's motion to dismiss the petition, alleging that the petition was not filed timely. 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.
On January 19, 2005, the California First District Court of Appeals in a combined unpublished decision both affirmed petitioner's 2002 conviction and denied his habeas petition. MTD, Exh. A. The appeal had been filed by counsel and the habeas petition was filed pro se. Opposition (Opp.), p. 22. A subsequent order modifying the opinion and denying rehearing (but not changing the judgment) issued on February 17, 2005. Id. at 48-49. Petitioner's appellate counsel filed a petition for review in the state supreme court on February 28, 2005, which was denied on May 11, 2005. MTD, Exh. B; Opp., pp. 2-3. Petitioner's conviction became final 90 days later, as respondent contends (MTD, p. 3) and petitioner concedes (Opp., p. 8), on August 9, 2005, when the time to file a petition for writ of certiorari in the United States Supreme Court expired. Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). As petitioner admits, the AEDPA statute of limitations began to run the next day, on August 10, 2005. Opp., p. 8. Petitioner thus had one year, or until August 9, 2006, to file a timely ...