Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. Respondents move to dismiss the action as untimely. The case is before the undersigned pursuant to parties' consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(1)-(2). For the reasons explained below, the petition is untimely and the motion to dismiss must be granted.
In July 1996, petitioner pleaded no contest to three counts of assault with force likely to produce great bodily injury in Solano County Superior Court. Resps.' Mot. to Dism., Ex. A. He was sentenced to six years in prison on July 19, 1996 and did not appeal the conviction or sentence. Id., Exs. A & B. Petitioner began state habeas proceedings challenging various aspects of his trial proceedings in March 2008. Id., Exs. C, D, & E. These state habeas proceedings concluded with the denial of a petition to the California Supreme Court on December 17, 2009. Id., Ex. E.
Petitioner filed this federal petition on December 14, 2009. He alleges that his trial counsel was ineffective, that he was convicted and sentenced in violation of the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution, and that the trial court violated his plea agreement.
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 or the expiration of the time for seeking such 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 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, under 28 U.S.C. § 2244(d)(2), 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." "[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). The filing of a federal habeas application, however, does not toll the limitations period under § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
The limitations period may also be tolled for equitable reasons 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, however; 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).
A habeas petitioner bears 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).
Here, the statute of limitations began to run when petitioner's time for seeking direct review of his conviction expired -- that is, 60 days from his sentencing, or September 17, 1996.
28 U.S.C. § 2244(d)(1)(A); Cal. R. Ct. 8.104(a); Lewis v. Mitchell, 173 F. Supp.2d. 1057, 1060 (C.D. Cal. 2001). 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 September 17, 1997 to file his federal habeas petition. However, he did not file the instant petition ...