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. Respondent moves to dismiss the petition on the ground it is untimely. Petitioner opposes, asserting that he is entitled to equitable tolling. For the reasons explained below, the court should grant respondent's motion.
Petitioner was convicted in the Sacramento County Superior Court of 11 felony sex offenses, one misdemeanor sex offense, and felony failure to register as a sex offender. People v. Chism, No. C039631, 2003 WL 353487 at *1 (Cal. Ct. App. February 18, 2003). He was sentenced to state prison for an indeterminate term of 275 years to life plus a 10 year determinate term. Id. The California Court of Appeal, Third Appellate District, reversed and remanded the judgment in part. Id. On June 17, 2003, the Sacramento Superior Court modified petitioner's sentence. Resp.'s Mot. to Dism. ("Mot."), Docs. Lodged in Support Thereof ("Lodg. Doc.") 3. Petitioner did not appeal the amended judgment.
Petitioner then filed five habeas petitions in California state courts. The first was filed on April 13, 2004*fn1 in the Sacramento County Superior Court and was denied on May 21, 2004. Lodg. Docs. 4, 5. The second was filed on January 5, 2005 in the Sacramento County Superior Court and was denied on February 14, 2005. Lodg. Docs. 6, 7. The third was filed on July 16, 2006 in the California Court of Appeal, Third Appellate District, and was denied on July 27, 2006. Lodg. Docs. 8, 9. The fourth was filed in the Sacramento County Superior Court on September 20, 2007 and was denied on October 31, 2007. Lodg. Docs. 10, 11. The fifth was filed in the California Supreme Court on January 26, 2008 and was denied on July 16, 2008. Lodg. Docs. 12, 13. Petitioner filed the instant petition on September 18, 2008.
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).
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 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), abrogation on other grounds recognized by Moreno v. Harrison, 245 Fed. Appx. 606 (9th Cir. 2007); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
A. Start of the Statute of Limitations
In this case, the one-year limitations period began to run when the judgment against petitioner became final on direct review. See 28 U.S.C. § 2244(d)(1)(A).*fn2 The Sacramento County Superior Court amended the judgment against him on June 17, 2003. See 28 U.S.C. § 2244(d)(1)(A). The judgment became final within the meaning of section 2244(d)(1)(A) when the time for filing an appeal expired sixty days later, on August 16, 2003. See Cal. R. Ct. 8.3808. The one-year limitations period began running the following day. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Thus, petitioner had until August 17, 2004 to file his federal habeas petition. However, he did not file the instant petition until September 18, 2008. Absent tolling, his application in this court is over four years late.
Respondent concedes that petitioner is entitled to 39 days of statutory tolling during the time that his first state habeas petition was pending, from April 13, 2004 until May 21, 2004. See Mot. at 4. Petitioner is not entitled to statutory tolling for the rest of his state petitions. His second and third petitions were requests for copies of his trial transcripts. As they did not seek review of his conviction or sentence, they were not "properly filed application[s] for State post-conviction or other collateral review with respect to the pertinent judgment or claim" within the meaning of 28 U.S.C. § 2244(d)(2), and did not toll the statute of limitations. See Smith, 297 F.3d at 813. His fourth state petition contained both a request for copies of his transcripts and claims challenging his conviction, although it was unclear whether he was attempting to merely support his request for transcripts or to make separate substantive claims. See Lodg. Doc. 11. The Sacramento Superior Court explicitly found that any substantive claims in this petition were untimely. Id. (citing In re Robbins, 18 Cal.4th 770, 811-12 n.32 (1998); In re Clark, 5 Cal.4th 750, 774-75 (1993)). Since the petition was untimely, it was not properly ...