Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. He proceeds on his December 31, 2009 petition. Respondent moves to dismiss on the ground that the petition is untimely. Petitioner opposes, asserting that he is entitled to statutory and equitable tolling of the statute of limitations. Petitioner also seeks an evidentiary hearing, leave to conduct discovery, and the appointment of counsel. Dckt. Nos. 18, 19. For the reasons explained below, the court finds that petitioner is entitled to discovery on his equitable tolling claims and denies respondent's motion to dismiss without prejudice to renewal after discovery is complete.
Petitioner was convicted of voluntary manslaughter and personal use of
a firearm in 2005. Dckt. No. 1, Pet. at 1. On August 11, 2006, the
California Court of Appeal, Third
Appellate District, affirmed the judgment. Lodg. Doc. 2. On October
25, 2006, the California Supreme Court denied review.*fn1
Lodg. Doc. 4.
Petitioner filed three state habeas petitions. The first was filed on January 18, 2008, in Tehama Superior Court, and was denied on April 28, 2008. Lodg. Docs. 5-6. The second was filed on July 2, 2008, in the California Court of Appeal, Third Appellate District, and was denied on July 24, 2008. Lodg. Docs. 7-8. The third petition was filed on December 24, 2008, in California Supreme Court, and was denied on November 10, 2009. Lodg. Docs. 9-10.
The instant petition was filed on December 31, 2009. Dckt. No. 1.
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, 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" 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. 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 is 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 (9th Cir. 2008) (finding that six months between successive filings was not a "reasonable time").
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 Pace, 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. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
A. Start Date of the Limitations Period
Here, the statute of limitations began to run when petitioner's conviction became final on direct review. See 28 U.S.C. § 2244(d)(1)(A). The California Supreme Court denied review on October 25, 2006. Lodg. Doc. 3. The conviction became "final" within the meaning of section 2244(d)(1)(A) when the time for filing a petition for writ of certiorari expired ninety days later, on January 23, 2007. Supreme Ct. R. 13; Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999).
The one-year limitations period commenced running the following day, January 24, 2007 and expired on January 23, 2008. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner did not file the instant petition until December 31, 2009, 708 days after the one-year limitations period expired. Absent tolling, his application in this court is untimely.
Petitioner argues that the limitations period did not begin running in his case until July 5, 2007. Pet'r's Opp'n to Mot. ("Opp'n") at 3-4. Under section 2244(d)(1)(D), the statute of limitations commences on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." According to petitioner, after Cunningham v. California, 549 U.S. 270 (2007) was decided, he "wondered whether he could raise a Cunningham claim . . . but he was uncertain because he didn't have his [trial court] transcripts."*fn2 Opp'n at 3. Petitioner relies on Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001) to support his argument that the date the limitations period began to run is the date he received his trial court transcripts from his attorney (on or about July 5, 2007), rather than the date the judgment became final, because upon receiving his transcripts petitioner "became aware of the particular facts in the transcripts that actually allowed him to assert his Cunningham ...