ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 2, 2009, the undersigned ordered respondent to file and serve a response to the petition. On January 28, 2010, respondent filed the pending motion to dismiss, arguing that petitioner's habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed an opposition to the motion, and respondent has filed a reply.*fn1
On August 7, 2006, a Siskiyou County Superior Court jury found petitioner guilty of first-degree murder and conspiracy to commit murder. The jury also found a number of sentencing enhancement allegations to be true. On September 28, 2006, the trial court sentenced petitioner to an indeterminate state prison term of life without the possibility of parole for the murder conviction, a consecutive twenty-five years to life term for the conspiracy conviction, and additional terms on the enhancements. (Pet. at 2; Resp't's Lodged Docs. 1-2.)
On September 25, 2007, the California Court of Appeal for the Third Appellate District stayed petitioner's twenty-five years to life sentence for the conspiracy conviction, instructed the Superior Court to amend the abstract of judgment to reflect the stay of the sentence on the conspiracy conviction and its related enhancements, and affirmed the judgment in all other respects. On December 12, 2007, the California Supreme Court denied review. On January 7, 2008, the Siskiyou County Superior Court issued an amended abstract of judgment to reflect the Court of Appeal's stay of petitioner's conspiracy sentence and its related enhancements. (Pet. at 3; Resp't's Lodged Docs. 2-5.)
Petitioner subsequently filed three petitions seeking habeas corpus relief in state court. Under the mailbox rule, on April 6, 2009, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was denied on September 9, 2009. On July 2, 2009, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District which was denied on July 30, 2009. Finally, on August 5, 2009, petitioner filed a second petition for writ of habeas corpus in the California Supreme Court which was denied on March 10, 2010. (Resp't's Lodged Docs. 6-12.)
On September 15, 2009, petitioner commenced this action by filing a federal petition for writ of habeas corpus with this court.
RESPONDENT'S MOTION TO DISMISS
Respondent moves to dismiss the pending petition, arguing that it is time-barred.
Specifically, respondent argues that on December 12, 2007, the California Supreme Court denied petitioner's petition for review, causing his judgment of conviction to become "final" on March 11, 2008, after the time for filing a petition for writ of certiorari expired. Respondent argues that the one-year statute of limitations for the filing a federal habeas petition began to run the following day, on March 12, 2008, and expired one year later on March 11, 2009. (Resp't's Mot. to Dismiss at 3.)
Respondent acknowledges that the proper filing of a state post-conviction application challenging a judgment of conviction tolls the one-year statute of limitations period. Respondent argues, however, that petitioner did not file his first state habeas petition until after the statute of limitations for the filing of a federal petition had expired. Respondent argues that petitioner's filings in state court after the AEDPA statute of limitations expired cannot serve to extend that limitations period. (Resp't's Mot. to Dismiss at 3-4.)
II. Petitioner's Opposition
In opposition to respondent's motion to dismiss, petitioner appears to agree with respondent that his petition is untimely. However, petitioner argues that prison officials withheld his legal documents from him, specifically his trial transcripts, for more than four months. He has attached to his opposition copies of correspondence from prison officials and a copy of his inmate log showing that prison officials received five boxes of his legal materials on December 17, 2007, but did not issue them to him until May 2, 2008. Petitioner has also attached ...