The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding without counsel, proceeds with an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 9.) Presently pending before the court is respondent's motion to dismiss filed January 14, 2011, premised on the contention that this action was untimely filed. (Dkt. No. 13.) In response to the court's order to show cause filed March 31, 2011 (Dkt. No. 16), now discharged (Dkt. No. 20), petitioner filed an opposition to the motion to dismiss, as well as a request that this action proceed on the amended petition (Dkt. Nos. 17, 19), and that the court appoint counsel for petitioner (Dkt. No. 18). Respondent filed a reply. (Dkt. No. 23.) For the reasons that follow, the court recommends that respondent's motion to dismiss be granted, and denies petitioner's motion for appointment of counsel.
This action is referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B), Local General Order No. 262, and Local Rule 302(c).
Petitioner was convicted in 2006 of first degree robbery and first degree burglary, and sentenced to prison for a term of 20 years. (Lodged Document ("Ldgd. Doc.") No. 1.) Petitioner's conviction was affirmed by the California Court of Appeal, Third Appellate District, on December 11, 2007. (Ldgd. Doc. No. 2.) The California Supreme Court denied review on March 12, 2008. (Ldgd. Doc. No. 4.) Petitioner did not file any state post-conviction collateral challenges to the judgment. Petitioner filed the instant action, pursuant to his initial federal habeas petition, on September 10, 2010; and his amended federal habeas petition was filed on November 4, 2010.
Respondent moves to dismiss petitioner's federal habeas 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).*fn1 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."*fn2 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 necessary lest the exceptions swallow the rule." Lakey v. Hickman, supra, 633 F.3d at 786 (citations and internal quotation marks omitted). "That determination is highly fact-dependent and [petitioner] bears the burden of showing that equitable tolling is appropriate." Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). "A petitioner must show that his untimeliness was caused by an external impediment and not by his own lack of diligence." Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007) (citing Roy v. Lampert, 465 F.3d 964, 973 (9th Cir. 2006)); see also Shannon v. Newland, 410 F.3d 1083, 1090 (9th Cir. 2005) (observing that in each of the cases in which equitable tolling has been applied the requisite "extraordinary circumstances" have been based on the "wrongful conduct" of another that "actually prevented the prisoner from preparing or filing a timely habeas petition").
In the present case, petitioner's conviction became "final" within the meaning of AEDPA, on June 10, 2008, upon expiration of the ninety-day period for seeking certiorari before the United States Supreme Court, following the California Supreme Court's denial of review. See Rule 13, U.S. Supreme Court Rules; Tillema v. Long, 253 F.3d 494, 498 (9th Cir. 2001); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Thus, AEDPA's one-year limitation period, as applied to petitioner, commenced running on June 11, 2008. 28 U.S.C. § 2244(d)(1)(A); Fed.R. Civ. P. 6(a) (excluding the day from which the period begins to run from the calculation of the time). Absent statutory and/or equitable tolling, petitioner was required to file his federal petition no later than June 10, 2009. Petitioner's federal habeas petition was filed more than one year after this deadline, on September 10, 2010.
Petitioner does not contend that he is entitled to statutory tolling. Rather, petitioner contends, pursuant to the "mailbox rule,"*fn3 that he is entitled to equitable tolling commencing August 17, 2008, when he allegedly signed his original petition and gave it to prison officials for mailing. That petition bears petitioner's signature dated August 17, 2008. (Dkt. No. 1 at 6-8.) Petitioner contends that the period of equitable ...