The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND 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 February 22, 2010. Petitioner challenges his 2006 conviction for assault by a life prisoner.*fn1 Petitioner was sentenced to nine years to life with the possibility of parole. The petition raises three claims. First, petitioner argues that the trial court violated state law as well as his right to due process by imposing a restitution order of $10,000. Second, petitioner argues that his trial counsel was ineffective in failing to object to the restitution order.
Pending before the court is respondent's October 4, 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.
According to the petition, on January 25, 2006, petitioner was sentenced and judgment was entered. (Dkt. 1, at 1 of 25.) Petitioner did not appeal. (Id.) Accordingly, petitioner's conviction became final on March 27, 2006, i.e. sixty days after the time for filing a direct appeal expired. See Cal. Ct. R. 8.308(a) ("[A] notice of appeal . . . must be filed within 60 days after the rendition of the judgment or the making of the order being appealed.") Therefore, petitioner had one year from March 27, 2006, in which to file a timely federal petition. The instant action, filed February 22, 2010, is not timely unless petitioner is entitled to statutory or equitable tolling*fn2 .
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 21, 2009. (Dkt. 22-1, at 6 of 13.) Petitioner is not entitled to statutory tolling because he did not file his state habeas petitions 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 present petition, petitioner suggests that he is entitled to equitable tolling. Equitable tolling is available to toll the one-year statute of limitations available to 28 U.S.C. § 2254 habeas corpus cases. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). A litigant seeking equitable tolling must establish: (1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). A petitioner who fails to file a timely petition due to his own lack of diligence is not entitled to equitable tolling. Tillema v. Long, 253 F.3d 494, 504 (9th Cir. 2001).
Petitioner alleges that on March 8, 2006, he arrived at Salinas Valley State Prison where he was placed on lockdown status for "the better part of his first two years." (Dkt. No. 1, at 12 of 25.) Petitioner alleges that on January 17, 2008, he was placed in administrative segregation when his first state petition was "finally ready" to be filed. (Id.) Petitioner argues that he has "fought an uphill battle with little knowledge and less resources." (Id.) Petitioner argues ...