Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is proceeding before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). See Consents filed March 16, 2010 and May 14, 2010. Petitioner challenges his 2005 conviction, entered pursuant to a plea of nolo contendere, for possession of an assault weapon and an admitted prior strike conviction. This matter is before the court on respondent's motion this action on the ground that it is barred by the statute of limitations.
Section 2244(d)(1) of title 28 of the United States Code 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) 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. 28 U.S.C. § 2244(d)(2).
For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:
1. On April 28, 2005, petitioner was convicted pursuant to his no contest plea and sentenced to twelve years and eight months in state prison. Petitioner did not appeal his conviction.
2. On or about November 20, 2008, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. That petition was denied on May 20, 2009.
3. On March 9, 2010, the instant action was opened with the filing of a petition for writ of habeas corpus signed by petitioner and delivered to prison officials for mailing on March 7, 2010.
The time for petitioner to file a direct appeal expired on June 27, 2005, sixty days after he was convicted, see Cal. Rules of Court, rule 8.308, and the federal habeas corpus statute of limitations began to run the next day, on June 28, 2005. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). It expired one year later. During that one year period, petitioner did not file any petition for post-conviction relief in any state court. He did not seek collateral review of his conviction in any court until November 2008, more than two years after the limitation period expired, and the instant action was not filed until almost three years after the limitation period expired.*fn2
In opposition to the motion to dismiss, petitioner asserts that he is "entitled to equitable tolling due to mental illness." Petitioner's Opposition to Motion to Dismiss, filed June 10, 2010, at 1. By order filed June 30, 2010, petitioner was granted a period of thirty days from the date of this order to file any evidence he has which supports the contention that he is entitled to equitable tolling of the limitation period due to mental illness, and respondent was granted a period of ten days in which to file additional evidence in support of the motion to dismiss. Both parties filed responses to the June 30, 2010 order.
A habeas petitioner is entitled to equitable tolling of the limitation period "only when 'extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time' and 'the extraordinary circumstances were the cause of his untimeliness.' Grounds for equitable tolling under § 2244(d) are 'highly fact-dependent.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003) and Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc)). The only evidence filed by petitioner shows that he was admitted to the California Department of Corrections and Rehabilitation (CDCR) enhanced outpatient (EOP) treatment program for mental health care treatment in September 2009, well after the limitation period expired. Respondent has filed petitioner's complete CDCR mental health records. Those records contain no ...