FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 22, 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, and respondent has filed a reply.
On December 31, 2007, prison officials issued a rules violation report charging petitioner with possession of an inmate-manufactured weapon. At petitioner's disciplinary hearing, prison officials found him guilty of the charge and assessed him 360 days loss of time credits. Petitioner unsuccessfully challenged that guilty finding through the administrative appeals process. (Am. Pet. Exs. A & H-J.)
Applying the mailbox rule,*fn1 on October 27, 2009, petitioner filed a petition for writ of habeas corpus challenging his prison disciplinary conviction in the Solano County Superior Court. After that court denied his petition, he filed petitions seeking habeas relief in the California Court of Appeal and the California Supreme Court. On September 15, 2010, the California Supreme Court denied his petition. (Resp't's Mot. to Dismiss Exs. 1-6.)
On December 1, 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 challenging his disciplinary conviction on December 12, 2008, at which time petitioner became aware of the factual predicate of his habeas corpus claims. According to respondent, the statute of limitations for the filing of a federal habeas petition began running the following day on December 13, 2008, and expired one year later on December 12, 2009. (Resp't's Mot. to Dismiss at 2.)
Respondent acknowledges that the proper filing of a petition for writ of habeas corpus in state court challenging the pertinent disciplinary conviction tolls the one-year statute of limitations period. However, respondent contends that even if the court grants petitioner statutory tolling for the entire time he was pursuing his claims in state court, his federal habeas petition is still untimely by about a month. Accordingly, respondent maintains that the pending petition is untimely and must be dismissed with prejudice. (Resp't's Mot. to Dismiss at 2.)
II. Petitioner's Opposition
In opposition to respondent's motion to dismiss, petitioner argues that the statute of limitations for his filing of a federal habeas petition did not begin to run again until ninety days after the California Supreme Court denied his petition because he could have filed a petition for writ of certiorari with the United States Supreme Court but chose not to do so. Alternatively, petitioner argues that he is entitled to equitable tolling of the statute of limitations because prison officials failed to include updated legal materials in the prison law library and failed to provide him meaningful access to the law library at his institution of incarceration. (Petn'r's Opp'n to Resp't's Mot. to Dismiss at 1-5 & Exs.)
In reply, respondent argues that petitioner is not entitled to statutory tolling for the ninety-day period following the California Supreme Court's denial of his habeas petition. Respondent also argues that petitioner is not entitled to equitable tolling because he has not alleged how any purportedly deficient legal resources or limited access to ...