The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the original petition filed April 29, 2010. Petitioner challenges his 2004 convictions for three counts of inflicting corporal injury on a spouse or cohabitant and one count of dissuading a victim by use of force or violence. Petitioner is serving a sentence of nine years.
Petitioner raises two claims. First, he alleges that his upper term sentences violate Butler v. Curry, 528 F.3d 624 (9th Cir. 2008). Second, he alleges that his consecutive sentences violate Blakely v. Washington, 542 U.S. 296 (2004).
Pending before the court is respondent's July 7, 2010 motion to dismiss on grounds that this action is barred by the statute of limitations. After carefully considering the record, the undersigned recommends that respondent's motion be 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 November 16, 2005, the California Supreme Court denied petitioner's petition for review. (Respondent's Lodged Document 4.) Petitioner's conviction became final ninety days later on February 14, 2006. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (a conviction is final for purposes of the statute of limitations at the expiration of the ninety day period for seeking certiorari). Therefore, the statute of limitations time period began on February 15, 2006. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying Federal Rule of Civil Procedure 6 to calculation of time periods).
This action was not filed within one year of February 15, 2006. Accordingly, this action is not timely unless petitioner is entitled to equitable or statutory tolling.
The period of limitation is tolled while a "properly filed" application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d)(2). Petitioner filed his first state habeas petition on April 17, 2009. (Respondent's Lodged Document 5.) Petitioner is not entitled to statutory tolling because he did not file his state habeas petition within the limitation period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).
In his opposition, petitioner makes no argument for equitable tolling. Instead, petitioner argues that because his claims are based on new law, the statute of limitations should run from a later trigger date pursuant to 28 U.S.C. § 2244(d)(1)(C). In particular, petitioner argues that the statute of limitations should run from June 9, 2008, i.e. the date the Ninth ...