FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. He proceeds on his November 30, 2009 petition. Respondent moves to dismiss arguing that the petition is time-barred. For the reasons explained below, the court finds that the petition must be dismissed as untimely.*fn1
Petitioner was issued a rules violation report for possession of a deadly weapon, and was sentenced to a term in the security housing unit (SHU). Pet., Dckt. No. 1, at 7. His petition challenges the sufficiency of the evidence to support the rules violation report. Id. at 23.
The rules violation report was issued in 2006. Pet. at 27-31. Petitioner filed an administrative appeal, which was denied at the director's level on May 21, 2007. Id. at 55-56.
Petitioner then filed three state habeas petitions. The first was filed in Amador Superior Court on October 17, 2008, and was denied on the merits on January 28, 2009. Resp.'s Mot. to Dism., Dckt. No. 12, Ex. 1-2. The second was filed in the California Court of Appeal, Third Appellate District, on June 12, 2009, and was denied as untimely on June 18, 2009. Id., Ex. 3-4. The third was filed in the California Supreme Court on July 8, 2009 and was denied on September 17, 2009. Ex. 5-6. The instant petition was filed on November 30, 2009. 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).
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). The threshold necessary to trigger equitable tolling is very high, and equitable tolling only applies where a petitioner shows that despite diligently pursuing his rights, some external force causedthe 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 on the date on which the factual predicate of petitioner's claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1)(A). Where a petitioner challenges the result of a prison disciplinary decision, the statute of limitations begins running the day after his administrative appeal is denied. Shelby v. Bartlett, 391 F.3d 1061, 1065-66 (9th Cir. 2004). The one-year limitations period in this case therefore began running on May 22, 2007, the day after petitioner's administrative appeal was denied at the director's level. Thus, petitioner had until May 22, 2008 to file his federal habeas petition. However, he did not file the instant petition until November 30, 2009. Absent tolling, his application in this court is more than a year late.
Petitioner does not argue that he is entitled to statutory tolling. See Pet. at 2 ("There is no dispute to the factual data that petitioner did file his petition in state court after the one year AEDPA time period had already elapsed."). As he did not file his first state petition until October 17, 2008, months after the statute of limitations had already run, no statutory tolling is available to him.
Instead, petitioner argues that he is entitled to equitable tolling for two reasons: 1) he opted not to risk preparing the petition until no other inmates could read it, as he was afraid he would be labeled a snitch and retaliated against if it was discovered that he reported the existence of a ...