FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the March 22, 2007 decision by the California Board of Parole Hearings (hereinafter "Board") finding petitioner unsuitable for parole. On June 25, 2010, the undersigned ordered respondent to file and serve a response to the petition. On August 23, 2010, respondent Warden Martel filed the pending motion to dismiss, arguing that petitioner's federal habeas application is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed an opposition to the motion.
The relevant procedural history is as follows. On March 22, 2007, the Board conducted a parole hearing and found petitioner unsuitable for release on parole. The decision became final on July 20, 2007. (Resp't's Mot. to Dismiss (MTD), Ex. 1, Board Decision at 9; Doc. No. 12-1 at 108.)
Petitioner filed three post-conviction collateral challenges in the state courts to the Board's decision. Applying the mailbox rule*fn1 , on December 5, 2007, petitioner filed a petition for a writ of habeas corpus in the Ventura County Superior Court. (MTD, Ex. 2; Doc. No. 12-2 at 64.) On April 21, 2008, the Superior Court denied that petition. (Id. ; Doc. No. 12-2 at 2.) On June 25, 2008, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Second Appellate District. (MTD, Ex. 3; Doc. No. 12-7 at 38.) On July 29, 2008, that petition was denied. (Id.; Doc. No. 12-7 at 2.) On November 24, 2008, petitioner filed a petition for habeas corpus in the California Supreme Court. (MTD, Ex. 4; Doc. No. 12-12 at 63.) On June 10, 2009, the California Supreme Court denied that petition. (Id.; Doc. No. 12-12 at 2.)
On September 28, 2009, petitioner signed his federal petition for a writ of habeas corpus and it was received by this court on October 1, 2009. (Doc. No. 4 at 7).
RESPONDENT'S MOTION TO DISMISS
Respondent moves to dismiss the pending habeas petition, arguing that it is time-barred. Specifically, respondent argues that the Board's decision to deny petitioner parole became final on July 20, 2007, and petitioner had one-year thereafter in which to file a federal habeas petition challenging that decision.
Respondent acknowledges that the proper filing of a state post-conviction application presenting the pertinent claims tolls the statute of limitations period. However, respondent contends that petitioner waited 150 days, from July 21, 2007 to December 17, 2007, before filing his habeas petition with the Ventura County Superior Court.*fn2 Respondent also notes that after the Superior Court denied the fiirst petition, petitioner waited another 91 days, from April 21, 2008 to July 21, 2008, before filing his next application for habeas relief with the California Court of Appeal. According to respondent, after that petition was denied, petitioner took another 125 days (from July 29, 2008 to December 1, 2008) before he filed his next habeas petition with the California Supreme Court. Finally, respondent notes that after the California Supreme Court denied that petition on June 10, 2009, petitioner did not file his federal habeas petition until October 1, 2009, after another 113-days had lapsed. Respondent argues that these unexplained and unreasonable delays between the decisions denying habeas relief by the state courts at each level and the filing of a petition with the next highest court do not entitle petitioner to statutory tolling of the AEDPA statute of limitations during those intervals. Accordingly, respondent argues, by the time petitioner filed his federal habeas petition, a total of 479 days (150 91 125 113 days) had run on the one-year statute of limitations. Thus, according to respondent, the pending petition was untimely by 114 days.
Petitioner asserts that his state habeas petitions were timely filed because none of those petitions were deemed untimely by the state courts. (Opp'n (Doc. No. 13) at 3.) Petitioner also notes that there is no bright-line rule under California law about what is an unreasonable delay between petitions filed in the next higher court following a denial of relief. (Id.) However, petitioner argues, there is a presumption that a sixty to ninety day interval between the denial of a petition by a state court and filing of a petition in the next highest state court is not unreasonable. (Id.) Furthermore, petitioner contends that he should be entitled to equitable tolling of the AEDPA statute of limitations from the date he filed his very first state habeas petition with the Ventura County Superior Court until the date his federal petition was filed in this court. (Id. at 5.) Petitioner concludes that even with "a reasonable amount of equitable tolling between intervals" his federal petition was filed "well within his AEDPA limitations period." (Id.)
STATUTE OF LIMITATIONS UNDER THE AEDPA
Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The AEDPA imposed a one-year statute of limitations on the filing of federal habeas petitions. Title 28 U.S.C. § 2244 provides as follows:
(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...