The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner Danny Garcia is a state prisoner proceeding without counsel who seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, based on challenges to his conviction made for the first time before this court.*fn1 Respondent Michael Martel, Acting Warden of Mule Creek State Prison, moves to dismiss this action on the ground that it was filed outside the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). Petitioner has filed an opposition in which he challenges calculation of the statute of limitations, asserts equitable tolling, requests a stay and abeyance to exhaust new claims in state court,*fn2 and asserts that he is in fact innocent. Respondent has filed a reply, and petitioner thereafter filed a declaration. For the following reasons, the court recommends that respondent's motion to dismiss be granted and that this action be dismissed with prejudice.
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA" or "Act"). The Act applies to all petitions for writs of habeas corpus filed after its enactment, Lindh v. Murphy, 521 U.S. 320 (1997); Ainsworth v. Calderon, 138 F.3d 787, 790 (9th Cir. 1998), and therefore applies to the instant petition filed September 2, 2008.*fn3 Pursuant to the Act's revisions, Section 2244(d)(1) provides:
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.
28 U.S.C. § 2244(d)(1). Section 2244(d)(2) further 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" the limitations period.
The following facts and chronology are relevant to the instant statute of limitations analysis:
1. In February 2004, petitioner was convicted in Butte County Superior Court of, inter alia, multiple lewd acts upon four children. In March 2004, he was sentenced to a determinate state prison term of 20 years, eight months, plus an indeterminate state prison term of 30 years to life. (See Lodged Document ("LD") No. 1, at pp. 541-- 45.)*fn4
2. On April 4, 2006, the California Court of Appeal, Third District, affirmed the judgment of the Superior Court. (LD No. 2.)
3. Petitioner petitioned for review in the California Supreme Court on May 17, 2006, which was denied without prejudice on July 26, 2006, as follows (LD No. 4):
Petition for review denied without prejudice to any relief to which defendant might be entitled after the United States Supreme Court determines in Cunningham v. California, No. 05-6551, the effect of Blakely v. Washington (2004) 542 U.S. 296 and United States v. Booker (2005) 543 U.S. 220, on California law.
4. Petitioner filed one state post-conviction collateral challenge, a petition for writ of habeas corpus filed in the California ...