The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding without counsel and in forma pauperis, with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court ordered service of the petition on respondent on February 14, 2011, based on petitioner's reference to a California Supreme Court decision rendered January 12, 2011 (Dkt. No. 1 at 3). (Dkt. No. 4.) Presently pending before the court is respondent's motion to dismiss the petition. (Dkt. No. 11.) Plaintiff has filed an opposition, which he has entitled a "traverse." (Dkt. No. 13.) For the following reasons, the court recommends that respondent's motion to dismiss be granted.
On September 15, 1995, after his conviction for robbery and attempted robbery, petitioner was sentenced to state prison for an indeterminate term of thirty-five years to life. (Lodged Document ("Ldgd. Doc.") No. 1 (Sacramento County Superior Court Case No. 95FO2537).) On October 17, 1997, the California Court of Appeal, Third Appellate District, affirmed the judgment. (Ldgd. Doc. No. 2.) On January 14, 1998, the California Supreme Court denied review. (Ldgd. Doc. Nos. 3-4.)
More than a decade later, on April 12, 2010, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court, alleging that the trial court erred in sentencing petitioner to the upper term for second degree robbery, and imposing additional terms for two enhancements. (Ldgd. Doc. No. 5.) The petition was denied on May 7, 2010. (Ldgd. Doc. No. 6). The superior court reached the merits of the petition, finding that it was "utterly meritless," and expressly stated that it therefore did need to address whether the petition was time-barred. (Ldgd. Doc. No. 6 at 2.) Petitioner sought reconsideration, which was denied on May 24, 2010. (Ldgd. Doc. Nos. 7-8.)
On May 24, 2010, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District (Ldgd. Doc. No. 9), which was denied on May 27, 2010, with a citation to In re Consiglio, 128 Cal. App. 4th 511 (2005) (addressing and rejecting the merits of petitioner's sentencing challenge) (Ldgd. Doc. No. 10).
On June 10, 2010, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was summarily denied on January 12, 2011. (Ldgd. Doc. Nos. 11-12.)
On January 19, 2011, petitioner filed the instant action.*fn1
(Dkt. No. 1.) Respondent moves to dismiss petitioner's
federal petition on the ground that it is time-barred by the one-year
statute of limitations set forth in the Antiterrorism and Effective
Death Penalty Act ("AEDPA").
AEDPA's one-year statute of limitations, set forth in 28 U.S.C. § 2244, applies to all federal habeas corpus petitions filed by "a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1).
The limitation period commences on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."
28 U.S.C. § 2244(d)(1)(A).*fn2 The limitation period is statutorily tolled during the pendency of "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim . . . ." 28 U.S.C. § 2244(d)(2). A state petition is "properly filed," and qualifies for statutory tolling, if "its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). Statutory tolling is not available for a state habeas petition that is "improperly filed" because untimely under California law. Lakey v. Hickman, 633 F.3d 782, 787 (9th Cir. 2011) (citing, inter alia, Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005)). Thus, "[t]he period between a California lower court's denial of review and the filing of an original petition in a higher court is tolled -- because it is part of a single round of habeas relief -- [only] so long as the filing is timely under California law." Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010). However, "[o]nly the time period during which a round of habeas review is pending tolls the statute of limitation; periods between different rounds of collateral attack are not tolled."*fn3 Id., (citation omitted).
Additionally, the limitation period may be equitably tolled if petitioner establishes that he diligently pursued his rights but some extraordinary circumstance stood in his way. Raspberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (citations and internal quotation marks omitted). "[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. . . . The high threshold of extraordinary circumstances is ...