FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 10, 2010, the undersigned ordered respondent to file and serve a response to the petition. On July 19, 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. Respondent has not filed a reply.
In 2006, a Solano County Superior Court jury found petitioner guilty of robbery, burglary, making criminal threats, false imprisonment, assault with a firearm, and assault by means likely to produce great bodily injury. The jury also found a number of enhancement allegations to be true. Pursuant to the jury's verdict the state trial court sentenced petitioner to twenty-one years and four months in state prison. On December 7, 2007, the California Court of Appeal for the First Appellate District affirmed petitioner's judgment of conviction. Petitioner did not file a petition for review with the California Supreme Court. (Am. Pet. at 2, Resp't's Mot. to Dismiss Ex. 1.)
Petitioner subsequently filed three petitions seeking habeas corpus relief in state court. Under the mailbox rule*fn1 , on December 19, 2008, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was denied on June 10, 2009. While that petition was pending, on or about April 1, 2009, petitioner filed a petition for writ of habeas corpus in the Solano County Superior Court which was denied on June 1, 2009. Finally, on or about June 24, 2009, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the First Appellate District which was denied on July 17, 2009. (Resp't's Mot. to Dismiss Exs. 2-5.)
On July 12, 2009, petitioner commenced this action by filing his federal petition for writ of habeas corpus together with a motion for a stay and abeyance. On October 27, 2009, the court granted petitioner's motion and stayed this case. Thereafter, petitioner filed a second petition for writ of habeas corpus in the California Supreme Court which was denied on December 23, 2009. (Resp't's Mot. to Dismiss Ex. 6.) Subsequently, petitioner returned to this court and filed a motion to lift the stay of this action together with an amended habeas petition. On February 10, 2010, the court granted petitioner's motion to lift the stay with the amended petition serving as the operative pleading before the court.
RESPONDENT'S MOTION TO DISMISS
Respondent moves to dismiss the pending habeas petition, arguing that it is time- barred. Specifically, respondent argues that on December 7, 2007, the California Court of Appeal affirmed petitioner's conviction, causing his judgment of conviction to become "final" forty days thereafter, on January 16, 2008, after the time for seeking review in the California Supreme Court expired. Respondent argues that the one-year statute of limitations for the filing of a federal habeas petition began to run the following day, on January 17, 2008, and expired one year later on January 16, 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 then waited 440 days before filing his first state habeas petition in the Solano County Superior Court. Respondent argues that petitioner's filings in state court after the AEDPA statute of limitations had expired cannot serve to extend that limitations period. In addition, respondent notes that the California Court of Appeal denied petitioner's state habeas petition filed with that court as untimely. Respondent contends that untimely petitions submitted in state court are not "properly filed" and therefore cannot serve to toll the AEDPA's one-year statute of limitations. (Resp't's Mot. to Dismiss at 3 & n.1.)
II. Petitioner's Opposition*fn2
In opposition to respondent's motion to dismiss, petitioner argues that he did not delay 440 days prior to filing his first state habeas petition. In fact, petitioner contends that on December 22, 2008, he filed his petition for writ of habeas corpus with the California Supreme Court. Although the California Supreme Court ultimately denied the petition on June 10, 2009, petitioner contends that he properly filed the petition and thereby stopped the statute of limitations for the filing of his federal petition from running. (Pet'r's Objs. at 2-3 & 5.)
In addition, petitioner argues that he is entitled to equitable tolling of the statute of limitations. Specifically, petitioner contends that the California Court of Appeal improperly denied his habeas petition filed with that court as untimely. He argues that California has failed to define "substantial delay" for non-capital habeas petitioners so that, in his view, he should have been able to assume that his habeas petition filed in the state appellate court would have been timely because he filed it nineteen days after the Solano County Superior Court denied his habeas petition. (Pet'r's Objs. at 6-8, Pet'r's Am. Objs. at 1-10.)
Petitioner also argues that he is entitled to equitable tolling or to a delayed start of the statute of limitations under 28 U.S.C. § 2244(d)(1)(D) because from 2006 through mid-2008 he was ignorant of the law governing post-conviction actions and ineffective assistance of counsel ("IAC") claims. Petitioner contends that he eventually received the assistance of a fellow prisoner/paralegal who reviewed his case and helped him obtain declarations from witnesses in support of his claims. Petitioner notes that prison officials in the mail room at his institution of confinement failed to give him some of his legal mail (declarations) sent from his family in "2008/09", but contends that as soon as he received those declarations and his last declaration from his trial counsel, he filed his habeas petition in state court. (Pet'r's Objs. at 10-11, Pet'r's Am. Objs. at 11-13, Pet'r's Decl. 1-3.)
Finally, petitioner argues that even if his federal habeas petition is untimely, the court should excuse his untimeliness because he is actually innocent of some of the crimes for which he has been convicted. Petitioner contends that the evidence presented with his pending petition together with the facts underlying his IAC claims cast a ...