The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prison inmate proceeding without counsel with a petition for a writ of habeas corpus challenging his convictions in Solano County for attempted murder, mayhem and assault with a deadly weapon, with enhancements for weapons use and great bodily injury. He alleges that trial counsel, counsel appointed to represent him on a motion for a new trial, and appellate counsel were all ineffective. Respondent has filed a motion to dismiss on the ground that the instant petition is untimely.
For the reasons set forth below, the undersigned recommends that defendant's motion be granted.
The Antiterrorism and Effective Death Penalty Act ("AEDPA")contains a statute of limitations for filing a federal habeas petition:
(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.
Generally, the judgment becomes final for statute of limitations purposes ninety days after the state's highest court affirms a defendant's conviction. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). If a defendant does not seek review from the state's highest court, the conviction becomes final at the expiration of the time for seeking such review. Espinoza-Matthews v. California, 432 F.3d 1021, 1025 (9th Cir. 2005).
In this case, petitioner pursued a direct appeal in the Court of Appeal for the First Appellate District, which affirmed his conviction on January 23, 2007. (Opposition ("Opp'n."), Ex. 10.) Appellate counsel did not file a petition for review with the California Supreme Court; petitioner's attempt to file his own petition was rejected because it was not timely. (Petition ("Petn."), Ex. J.) Accordingly, petitioner's conviction was final on March 5, 2007, forty days after the Court of Appeal's decision. Former Cal. R. Court 24(b)(1), 28(e)(4). Therefore, the statute of limitations began to run on March 6, 2007, and expired on March 6, 2008. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying Fed. R.Civ.P. 6(a) to computation).
The statute of limitations is tolled during the pendency of any "properly filed" state collateral attack on the judgment. Nino v. Galaza, 183 F.3d 1003, 1006-07 (9th Cir. 1999). However, a state petition filed after the limitations period has run will neither revive nor toll the statute of limitations. Jimenez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). Petitioner filed a petition in Solano County Superior Court on April 28, 2009, and a petition in the California Supreme Court on June 14, 2009. (Petn, Ex. I; Motion to Dismiss ("MTD"), Ex. A.) The former petition was denied on May 20, 2009; the latter, on October 28, 2009. (Petn., Exs. 8 & 9.) As neither of those petitions tolled the statute of limitations, the instant petition, filed in the Northern District of California on January 21, 2010, is not timely.
Petitioner suggests that he is entitled to rely on section 2244(d)(1)(D) and that, based on this section, the statute of limitations did not begin to run until January 2009. He argues that trial counsel told him she would not call him as a witness in support of his claim of self-defense because he was "too emotional" and would not make a good witness. (Declaration of Larry A. Chatman, Petn., Ex. 4 ¶¶ 3-4.) Petitioner then recounts that in 2009, when his estranged common-law wife finally accepted a collect call, he learned that counsel decided not to call him as a witness because he was subject to impeachment with his prior convictions. He says ...