Petitioner is a state prisoner without counsel seeking a writ of habeas corpus under 28 U.S.C. § 2254. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to the parties' consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4). Respondent moves to dismiss this action on the grounds that it is untimely and includes unexhausted claims. For the reasons explained below, the court finds that the petition is untimely and respondent's motion should therefore be granted.*fn1
On November 2, 1998, the Sacramento County Superior Court sentenced petitioner to a determinate state prison term of twenty-seven years and four months for his convictions of second degree robbery, assault likely to produce great bodily injury, resisting arrest, and two counts of intimidating a witness, with a number of sentencing enhancements found true. Resp.'s Mot. to Dism. ("Mot."), Docs. Lodged in Supp. Thereof ("Lodg. Doc.") 1. On September 1, 1999, the California Court of Appeal, Third Appellate District affirmed the judgment and on November 17, 1999, the California Supreme Court denied petitioner's petition for review. Lodg. Docs. 2, 4. Petitioner then filed eight pro se state post-conviction challenges to the pertinent judgment, the earliest of which was filed on May 12, 2001 in the Sacramento County Superior Court.*fn2 Lodg. Doc. 5; see also Lodg. Docs. 7, 9, 11, 13, 15, 17, 19. On June 12, 2008, petitioner filed the instant petition challenging his 1998 conviction. Dckt. No. 1.
II. Statute of Limitations
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). But 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). If the limitations period has run, however, it cannot be revived by a collateral action. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).
The limitations period may 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 equitable tolling. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
In this case, the statute of limitations began to run when petitioner's conviction became final on direct review. See 28 U.S.C. § 2244(d)(1)(A). The California Supreme Court denied review on November 17, 1999. Lodg. Doc. 4. The conviction became "final" within the meaning of section 2244(d)(1)(A) when the time for filing a petition for writ of certiorari expired ninety days later, on February 15, 2000. Supreme Ct. R. 13; Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). The one-year limitations period commenced running the following day. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Thus, petitioner had until February 15, 2001, to file his federal habeas petition. However, he did not file the instant petition until June 12, 2008. Dckt. No. 1. Absent tolling, his application in this court is over seven years late.
As noted, petitioner filed eight petitions for post-conviction relief in the state courts. Lodg. Docs. 5, 7, 9, 11, 13, 15, 17, 19. The earliest of these petitions was filed on May 12, 2001. Lodg Doc. 5. Because petitioner waited until three months after the limitations period expired to file his first state habeas petition, he is not entitled to statutory tolling. See Jiminez, 276 F.3d at 482.
Petitioner, who received the assistance of another inmate in preparing and filing his opposition brief, asserts that equitable tolling is warranted due to his "well below normal cognitive abilities and mental illness." Pet'r's Opp'n to Mot. ("Opp'n") at 4, Ex. B (Decl. of D. Wright). According to the inmate who assisted petitioner, petitioner insisted that he receive help with his opposition brief as petitioner "is truly unable to comprehend what must be done . . . ." Id. at 6.
A prisoner is entitled to equitable tolling only where he demonstrates that an extraordinary circumstance stood in his way and prevented timely filing. See Lawrence v. Florida, 549 U.S. 327, 336-37 (2007). Mental incompetency can constitute an extraordinary circumstance beyond the prisoner's control that can equitably toll the statute of limitations. Calderon v. U.S. Dist. Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en banc), overruled on other grounds by Woodford v. Garceau, 538 U.S. 202, 205-06 (2003)). Specifically, where a petitioner's mental incompetence caused his failure to meet the filing deadline, the deadline should be equitably tolled. Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003); see also Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001) ("[M]ental incompetence is not a per se reason to toll a statute of limitations. Rather, the alleged mental incompetence must somehow have affected the petitioner's ability to file a timely habeas petition." (internal ...