The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
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. This action is proceeding on the original petition filed July 22, 2009. Petitioner argues that his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), Blakely v. Washington, 542 U.S. 296 (2004) and Cunningham v. California, 549 U.S. 270 (2007).
Pending before the court is respondent's February 17, 2010, motion to dismiss on grounds that this action is barred by the statute of limitations. For the following reasons, respondent's motion is granted.
The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1):
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.
On February 15, 2005, petitioner was sentenced to ten years imprisonment following his plea of no contest to two counts of committing a lewd act upon a child. Respondent's Exhibits A, B. Petitioner did not appeal his conviction. Accordingly, his conviction became final 60 days later on April 16, 2005. Cal. Rules of Court 8.308(a); Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006). Petitioner had one year from April 16, 2005, to file a timely federal petition. The instant action is not timely unless petitioner is entitled to statutory or equitable tolling.
Petitioner is not entitled to statutory tolling pursuant to 28 U.S.C. § 2254(d)(2) because he did not file his first state habeas petition until January 2, 2008, which was after the limitations period ran. Respondent's Exhibit C; Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Petitioner makes no argument for equitable tolling.
In his opposition, petitioner suggests that he is entitled to equitable tolling because the grounds for his petition did not arise until Cunningham was decided in 2007. Rather than an argument for equitable tolling, this is an argument for a different statute of limitations trigger date. Accordingly, the court finds that the instant action, filed July 22, 2009, is not timely under 28 U.S.C. § 2244(d)(1)(A).
Petitioner suggests that a later trigger date for the statute of limitations runs from the date Cunningham was decided pursuant to 28 U.S.C. § 2244(d)(1)(C). In Butler v. Curry, 528 F.3d 624, 639 (9th Cir. 2008) the Ninth Circuit concluded that Cunningham did not announce a new rule:
Apprendi, Blakely and Booker made "courts throughout the land' aware that sentencing schemes that raise the maximum possible term based on facts not found by a jury violate the constitutional rights of defendants. [Citation omitted.] No principles of comity or federalism would be served by refusing to apply this rule to functionally indistinguishable state sentencing schemes on collateral review. Cunningham ...