The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is Respondent's motion to dismiss the petition on the grounds that it was filed beyond the one-year statute of limitations, 28 U.S.C. § 2244(d) (Doc. 17). Petitioner filed an opposition to the motion (Doc. 21), a supplemental opposition (Doc. 23), and respondent filed a reply (Doc. 24).
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases. The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F. Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n.12. The petitioner bears the burden of showing that he has exhausted state remedies. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
Respondent brings this motion to dismiss Petitioner's federal habeas corpus petition as filed beyond the one-year statute of limitations, pursuant to 28 U.S.C. § 2244(d).
Federal habeas corpus petitions must be filed within one year from the later of:
(1) the date the state court judgment became final; (2) the date on which an impediment to filing created by state action is removed; (3) the date on which a constitutional right is newly-recognized and made retroactive on collateral review; or (4) the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court judgment becomes final by the conclusion of direct review or expiration of the time to seek direct review. See 28 U.S.C. § 2244(d)(1).
Where a petition for review by the California Supreme Court is filed and no petition for certiorari is filed in the United States Supreme Court, the one-year limitations period begins running the day after expiration of the 90-day time within which to seek review by the United States Supreme Court. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Where a petition for writ of certiorari is filed in the United States Supreme Court, the one-year limitations period begins to run the day after certiorari is denied or the Court issued a merits decision. See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). Where no petition for review by the California Supreme Court is filed, the conviction becomes final 40 days following the Court of Appeal's decision, and the limitations period begins running the following day. See Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002). If no appeal is filed in the Court of Appeal, the conviction becomes final 60 days after conclusion of proceedings in the state trial court, and the limitations period begins running the following day. If the conviction became final before April 24, 1996 -- the effective date of the statute of limitations -- the one-year period begins to run the day after the effective date, or April 25, 1996. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999).
The limitations period is tolled, however, for the time a properly filed application for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2). To be "properly filed," the application must be authorized by, and in compliance with, state law. See Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 552 U.S. 3 (2007); Pace v. DiGuglielmo, 544 U.S. 408 (2005) (holding that, regardless of whether there are exceptions to a state's timeliness bar, time limits for filing a state post-conviction petition are filing conditions and the failure to comply with those time limits precludes a finding that the state petition is properly filed). A state court application for post-conviction relief is "pending"during all the time the petitioner is attempting, through proper use of state court procedures, to present his claims. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). It is not, however, considered "pending" after the state post-conviction process is concluded. See Lawrence v. Florida, 549 U.S. 327 (2007) (holding that federal habeas petition not tolled for time during which certiorari petition to the Supreme Court was pending). Where the petitioner unreasonably delays between state court applications, however, there is no tolling for that period of time. See Carey v. Saffold, 536 U.S. 214 (2002). If the state court does not explicitly deny a post-conviction application as untimely, the federal court must independently determine whether there was undue delay. See id. at 226-27.
There is no tolling for the interval of time between post-conviction applications where the petitioner is not moving to the next higher appellate level of review. See Nino, 183 F.3d at 1006-07; see also Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001). There is also no tolling for the period between different sets of post-conviction applications. See Biggs v. Duncan, 339 F.3d 1045 (9th Cir. 2003). Finally, the period between the conclusion of direct review and the filing of a state post-conviction application does not toll the limitations period. See Nino, 1983 F.3d at 1006-07.
Here, Petitioner is challenging the requirement that he register as an arson offender pursuant to the amended abstract of judgment from his 1997 conviction. He claims the registration requirement was not included in his original abstract of judgment, but rather was added after the fact (and without notice to him) sometime in 1998. However, he did not discover the modified abstract of judgment until sometime in 2004. Following this discovery, petitioner filed four state habeas petitions: On May 3, 2005, he filed a petition in the Yuba County Superior Court, which was denied on December 2, 2005; On December 11, 2005, he filed a petition in the California Court of Appeal, which was denied on January 5, 2006; On April 22, 2009, he filed another petition in the California Court of Appeal, which was denied on May 7, 2009; and finally, he filed a petition in the California Supreme Court on June 16, 2009, which was denied on November 19, 2009.
Respondent argues that petitioner is challenging his 1997 conviction, and the statute of limitations expired in 1998 on his claims, as no direct appeal was filed. Petitioner did not file his first petition until 2005, rendering his current petition untimely. Petitioner challenges respondent's calculation of time, claiming as he did not discover the modified abstract of judgment until 2004, and argues his petition is timely.*fn1 This, he claims, is supported by the Yuba County Court finding that his petition was in fact timely. Respondent then avers that even if petitioner is entitled to the delayed discovery date of 2004, his federal petition is still untimely as more than three years passed between his petitions filed in the California Court of Appeal. Petitioner then counters that the delay in filing his petitions was due to counsel refusing to provide him his file and documents in which to file his exhaustion petition.
If respondent is correct, and the statute of limitations began based as of the conviction date in 1997, petitioner's petition is clearly untimely. However, the court will assume for this discussion that petitioner is entitled to the later commencement date of 2004.*fn2 Petitioner claims he discovered the modified abstract of judgment in 2004 while preparing for another trial. The 2004 trial he was preparing for concluded, based on the information contained in petitioner's exhibits, in September 2004. Therefore, if he discovered the modified abstract of judgment while preparing for that trial, it occurred sometime prior to September 2004. Barring any tolling, therefore, the statute of limitations would have run as of September 2005.
Petitioner filed his first state habeas in May 2005. This would have been within the statute of limitation, and would have been timely, as the state court determined. This petition was denied in December 2005. Petitioner then filed another state habeas petition later in December 2005. The second petition would also have been timely, and the statute of limitations would statutorily toll from the date his first state habeas was filed in May 2005, until the denial of his second state habeas petition in January 2006. However, petitioner then waited until April 2009 to file another state habeas petition. Even then, he filed the third such petition as a second petition with the California Court of Appeal. This would not be considered moving to the next higher appellate level of review, and the statute of limitations would not have been tolled by this petition. His petition to the California Supreme Court was not filed until June 2009.
Petitioner, therefore, delayed filing his exhaustion petition in the California Supreme Court for over three years, from January 2006 until June 2009. A three year delay is an unreasonabe delay, which fails to qualify for tolling during that period of time. See Carey v. Saffold, 536 U.S. 214 (2002). If the statute of limitations began in September 2004, and ran until petitioner's first habeas petition was filed in May 2005, approximately eight months of the one year statute of limitations had run during this time. The statue of limitations began again in January 2006, with the California Court of Appeal's denial. Barring some additional tolling, therefore, the statute of limitations expired in or around May 2006, rendering his 2009 federal petition untimely.
Petitioner does not explicitly request equitable tolling, but tries to explain the three year delay in filing his petitions as based on his attorney's negligence in returning his file and documents. He states that after writing his attorney several letters, he did not receive his file until 2009, after he had filed a complaint with the California State Bar. He fails to support his claim of numerous letters, only providing two letters he sent to his attorney in 2009. This fails to explain the delay throughout 2007 and 2008. However, even if petitioner had sent his attorney letters during the relevant time period, he fails to explain how that rendered him incapable of filing his petitions in the California Supreme Court or in this court prior to the expiration of the statute of limitations. In addition, even if his attorney was negligent in failing to return his files, such negligence cannot form the basis of entitlement to equitable tolling. The Ninth Circuit has concluded that while egregious misconduct of counsel may warrant equitable tolling, see Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003), ...