FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner with counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. Respondent moves to dismiss on the ground that the petition is untimely under 28 U.S.C. § 2244(d). The court agrees that the petition is untimely for the reasons that follow and accordingly recommends that the motion to dismiss be granted.
Petitioner was convicted of the second degree murder of his wife, Cynthia, in 1996 following a jury trial. Dckt. No. 10, Am. Pet. at 5, 6. Petitioner's direct appeals of his conviction terminated on February 3, 1998, when the California Supreme Court denied his petition for review. Dckt. No. 19, Resp.'s Mot. to Dism., Ex. B.
Petitioner filed an application for a writ of habeas corpus in the Solano County Superior Court on January 5, 2006. Am. Pet. at 5. The court held an evidentiary hearing, but denied the petition on February 26, 2008. Id. Petitioner then filed a habeas application in the California Court of Appeal on June 6, 2008. Resp.'s Mot. to Dism., Ex. C. That petition was denied on April 6, 2009. Id. On May 13, 2009, petitioner filed a habeas application with the California Supreme Court, which was denied on October. 14, 2009. Id., Ex. D. The instant petition was filed on October 19, 2009. Dckt. No. 1.
II. Statute of Limitations -- Governing Law
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" under § 2244(d)(2) during the intervals between a lower court decision and filing a new petition in a higher court if the second petition was filed within a "reasonable time" after the denial of the first. Evans v. Chavis, 546 U.S. 189, 197 (2006); Carey v. Saffold, 536 U.S. 214, 223 (2002). Generally, a gap of 30 to 60 days between state petitions is considered a "reasonable time" during which the statute of limitations tolled, but six months is not reasonable.
Evans, 546 U.S. at 210 (using 30 to 60 days as general measurement for reasonableness based on other states' rules governing time to appeal to the state supreme court); Saffold, 536 U.S. at 219 (same); Waldrip v. Hall, 548 F.3d 729, 731 (finding that six months between successive filings was not a "reasonable time").
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 this pronouncement, 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. ...