ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner with counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. He proceeds on the March 17, 2010 petition. Respondent moves to dismiss on the ground that the petition is untimely. Petitioner opposes, asserting that he is entitled to equitable tolling of the statute of limitations because 1) he was diligent in pursuing his state habeas remedies and 2) he is actually innocent.
The court held a hearing on respondent's motion to dismiss on September 1, 2010, and the motion was submitted. For the reasons explained below, the court now finds that the motion to dismiss must be granted.
Petitioner was convicted of second degree murder and a sentencing enhancement was found true. On October 19, 2001, petitioner was sentenced to an indeterminate state prison term of eighteen years to life. Lodg. Doc. 1.
On May 15, 2003, the California Court of Appeal, Third Appellate District, affirmed the judgment. Lodg. Doc. 2. On August 13, 2003, the California Supreme Court denied review. Lodg. Docs. 3-4.
Petitioner filed three state habeas petitions. The first was filed on November 13, 2006, in Sacramento Superior Court, and was denied on December 18, 2006. Lodg. Docs. 5-6. The second was filed on October 9, 2007, in the California Court of Appeal, Third Appellate District, and was denied on February 21, 2008. Lodg. Docs. 7-8. The third petition was filed on April 30, 2008 and was denied on March 18, 2009. Lodg. Docs. 9-10.
The instant petition was filed on March 17, 2010. Dckt. No. 1.
II. Statute of Limitations
A one-year limitations period for seeking federal habeas relief begins to run from the latest of the date the judgment became final on direct review, the date on which a state-created impediment to filing is removed, the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review or the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).
There is no statutory tolling of the limitations period "from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed . . . ." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). However, once a petitioner properly files a state post-conviction application the period is tolled, and remains tolled for the entire time that application is "pending." 28 U.S.C. § 2244(d)(2). "[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post-conviction application is "pending" during the intervals between a lower court decision and filing a new petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002). A federal habeas application does not provide a basis for statutory tolling. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
The limitations period may also be equitably tolled where a habeas petitioner establishes two elements: (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). In light of Pace, the Ninth Circuit has reiterated that the threshold necessary to trigger equitable tolling is very high, and clarified that equitable tolling only applies where a petitioner shows that despite diligently pursuing his rights, some external force caused the untimeliness. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009).
Petitioner has the burden of showing facts entitling him to statutory and equitable tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
In this case, the statute of limitations began to run when petitioner's conviction became final on direct review. See 28 U.S.C. § 2244(d)(1)(A). The California Supreme Court denied review on August 13, 2003. Lodg. Doc. 4. The conviction became "final" within the meaning of section 2244(d)(1)(A) when the time for filing a petition for writ of certiorari expired ninety days later, on November 11, 2003. Supreme Ct. R. 13; Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). The one-year limitations period commenced running the following day. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Thus, petitioner had until November 11, 2004, to file his ...