FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner with counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action proceeds on the December 7, 2010 petition. Dckt. No. 1. Respondent moves to dismiss on the grounds it is untimely. Petitioner's opposition argues that the limitations period should be tolled for equitable reasons. For the reasons explained below, the court finds that petitioner has not met the high threshold for application of equitable tolling, and the petition must be dismissed as untimely.
Petitioner was sentenced to a determinate state prison term of 18 years on January 5, 2007, following convictions for lewd and lascivious conduct with a child under 14 years of age. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc."), Lodg. Doc. 1. The California Court of Appeal affirmed the judgment on June 30, 2008, and the California Supreme Court denied petitioner's petition for review on September 10, 2008. Lodg. Doc. Nos. 2-4.
Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on December 10, 2009. Lodg. Doc. No. 5. The petition was denied on June 9, 2010. Lodg. Doc. No. 6. The instant federal petition followed on December 7, 2010. 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. Carey v. Saffold, 536 U.S. 214, 223 (2002). 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 and prevented timely filing. Holland v. Florida, ___ U.S. ___, 130 S. Ct. 2549, 2554, 2562 (2010). Petitioner has the burden of showing facts entitling him to equitable tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). The threshold necessary to trigger equitable tolling is very high, "lest the exceptions swallow the rule." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Equitable tolling may be applied only where a petitioner shows that some external force caused the untimeliness. Id.
Where a petitioner claims that the untimeliness was caused by the actions of an attorney, the petitioner must show "attorney misconduct that is sufficiently egregious to meet the extraordinary misconduct standard." Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). Garden variety claims of an attorney's excusable neglect do not constitute the type of extraordinary circumstances that may justify equitable tolling. Holland, 130 S. Ct. at 2564. Accordingly,"[a]attorney negligence, including a miscalculation of a filing deadline, is not a sufficient basis for applying equitable tolling of the § 2244(d)(1) limitation period." Porter, 620 F.3d at 959.
In this case, 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 September 10, 2008. Lodg. Doc. No. 4. Thus, 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 December 9, 2008. 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. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Therefore, petitioner had until December 9, 2009 to file his federal habeas petition. However, he did not file the instant petition until December 7, 2010. Absent tolling, his application in this court is nearly one year late.
The parties do not dispute that petitioner is not entitled to statutory tolling for the period of time that his state habeas petition was pending (between December 10, 2009 and June 9, 2010), because that petition was filed one day after the federal limitations period expired. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]section 2244(d) does not permit ...