ORDER AND 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. Before the court is respondent's motion to dismiss this action on the ground that the habeas petition was filed beyond the one-year statute of limitations under 28 U.S.C. § 2244(d). Petitioner has filed an opposition to the motion and respondent has filed a reply.
Petitioner was convicted in the San Joaquin County Superior Court of assault with a firearm and of being a felon in possession of a firearm. (Lod. Doc. 1) (filed August 28, 2009).
Sentencing enhancement allegations were found to be true. (Id.) On October 11, 2002, petitioner was sentenced to an indeterminate prison term of twenty-five years to life, plus enhancements. (Id.) On September 27, 2004, the California Court of Appeal for the Third Appellate District affirmed the judgment of conviction. (Lod. Doc. 2.) On September 19, 2008, petitioner filed a petition for writ of habeas corpus with the California Supreme Court. (Lod. Doc. 3.) That petition was denied on May 20, 2009. (Lod. Doc. 4.) On June 3, 2009, petitioner filed his federal habeas petition with this court.
RESPONDENT'S MOTION TO DISMISS
Respondent asserts that because the pending petition was filed on June 3, 2009, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies. (MTD at 2.) According to respondent, because petitioner did not file a petition for review with the California Supreme Court, his judgment of conviction became final on November 6, 2004, forty days after the time for filing a petition for review had expired. (Id.) The one year AEDPA statute of limitations began to run the following day on November 7, 2004. (Id.) Thus, respondent argues, the last day for petitioner to timely file a federal habeas petition was on November 6, 2005, unless he was entitled to any tolling of the applicable statute of limitations. (Id. at 3.)
Respondent contends that petitioner is not entitled to statutory tolling under 28 U.S.C. §2244(d)(2) since he did not file any post-conviction collateral attacks on his conviction in state court within the one-year AEDPA statute of limitations period. (Id.) Therefore, respondent asserts, the statute of limitations for the filing of a federal habeas petition commenced on November 7, 2004, and expired on November 6, 2005. (Id.) Since petitioner did not file his federal habeas petition until over three years after the statute of limitations expired, respondent argues that this federal habeas action is time barred. (Id.)
Respondent also notes that the habeas petition filed by petitioner with the California Supreme Court on September 19, 2008, cannot operate to toll the AEDPA statute of limitations because that petition was rejected as untimely as indicated by the California Supreme Court's citation to In re Robbins, 18 Cal. 4th 770, 780 (1998) in denying the petition. Respondent contends that Robbins stands for the proposition that delayed claims will not be condoned. (Id.) Therefore, according to respondent, the belated habeas petition filed by petitioner with the California Supreme Court cannot serve to toll the AEDPA statute of limitations because it was not properly filed. (Id.)
II. Petitioner's Opposition
In opposing the pending motion to dismiss petitioner contends that on or about October 22, 2004, he filed a petition for review with the California Supreme Court. (Opp'n at 3.) Petitioner states that the petition for review was prepared by his appellate counsel and was mailed to petitioner on October 18, 2004, so that petitioner could file it with the California Supreme Court on his own behalf. (Id.) Petitioner contends that on or about October 22, 2004, he mailed the petition for review to the California Supreme Court from Mule Creek State Prison. (Id.) Petitioner has submitted a copy of the prison mail log to verify his contention that mail was sent to the California Supreme Court on October 22, 2004. (Id., Ex. C at 3.)
Petitioner argues that, believing that the petition for review was pending in the California Supreme Court, he waited for that court's ruling in response to the petition. (Id. at 4.) Petitioner represents that on March 16, 2008, he filed a "Request for Case Status Update and Legal Status Summary Sheet" with the California Supreme Court and that on March 19, 2008, the court sent him a letter stating that it could not locate a case related to petitioner's inquiry. (Id.)
Petitioner explains that on April 17, 2008, he wrote to the litigation coordinator at High Desert State Prison and requested a copy of the incoming and outgoing legal mail to determine if his petition for review had in fact been mailed to the California Supreme Court. (Id. at 4-5.) Petitioner claims that he was told to contact the mailroom at Mule Creek State Prison. (Id. at 5.) He states that on May 14, 2008, he finally received the record of the incoming and outgoing legal mail at Mule Creek State Prison which shows that he forwarded legal mail to the California Supreme Court on October 22, 2004. (Id., Ex. C at 3.) Petitioner argues that the fact that his petition for review did not arrive at the California Supreme Court, or was lost or misplaced, was a circumstance beyond his control and that he is therefore entitled to statutory tolling of the AEDPA statute of limitations. (Id. at 5.)
Petitioner also argues that he is entitled to equitable tolling of the applicable statute of limitations. (Id. at 6.) In this regard, he contends that he acted diligently and that his petition for review was submitted for mailing to the California Supreme Court in a timely matter. (Id.) In addition, petitioner claims, these were external forces beyond his ...