FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 24, 2011, respondent filed the pending motion to dismiss, arguing that petitioner's federal habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed an opposition to the motion.
On July 28, 2008, prison officials issued a rules violation report charging petitioner with sexual disorderly conduct. At petitioner's disciplinary hearing, prison officials found him not guilty of that charge but instead found him guilty of visiting rule violations presenting a threat to institutional security. Petitioner challenged that guilty finding through the administrative appeals process. On May 14, 2009, petitioner's final appeal was denied at the director's level of review. (Pet. Attach.)
Applying the mailbox rule,*fn1 on September 14, 2009, petitioner filed a petition for writ of habeas corpus challenging his disciplinary conviction in the Sacramento County Superior Court. That court transferred the petition to the Solano County Superior Court, the county where petitioner was then incarcerated. On October 2, 2009, the Solano County Superior Court filed the petition and notified petitioner that the court received the petition from the Sacramento County Superior Court. On December 1, 2009, the Solano County Superior Court denied the petition for habeas relief. Next, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the First Appellate District. On January 7, 2010, the California Court of Appeal denied that petition due to petitioner's failure to use the required form and to include a copy of the lower court's order with his petition. Petitioner subsequently submitted a second petition to the California Court of Appeal which was denied on February 26, 2010. Finally, petitioner submitted a petition for writ of habeas corpus to the California Supreme Court. On April 28, 2010, the California Supreme Court denied that petition. (Resp't's Mot. to Dismiss Exs. 3-11.)
On December 13, 2010, petitioner commenced this action by filing a federal petition for writ of habeas corpus with this court.
RESPONDENT'S MOTION TO DISMISS
Respondent moves to dismiss the pending federal petition, arguing that it is time-barred. Specifically, respondent argues that the director's level of review rejected petitioner's administrative appeal on May 14, 2009, at which time petitioner became aware of the factual predicate of his habeas claims. According to respondent, the statute of limitations for the filing of a federal habeas petition began running the following day on May 15, 2009, and expired one year later on May 14, 2010. According to respondent's calculation, the pending petition is untimely because 140 days of the statute of limitations ran before petitioner's first petition for writ of habeas corpus was filed in the Solano County Superior Court on October 2, 2009, and another 229 days expired after the California Supreme Court denied his petition for state habeas relief before he filed his federal petition in this court. Accordingly, respondent maintains that the pending petition is untimely by four days and must be dismissed with prejudice. (Resp't's Mot. to Dismiss at 3-4.)
II. Petitioner's Opposition
In opposition to respondent's motion to dismiss, petitioner argues that he is
entitled to statutory tolling for the entire period that he pursued habeas relief in state court. Petitioner asks the court to allow the pending petition to proceed as timely filed. (Petn'r's Opp'n to Resp't's Mot. to Dismiss at 2-3.)
I. The AEDPA Statute of Limitations
On April 24, 1996, Congress enacted AEDPA which amended 28 U.S.C. § 2244 by adding ...