The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Respondent's motion to dismiss came on for hearing October 20, 2011, before the undersigned. Tami Krenzin appeared for respondent. Richard Ellis appeared by telephone for petitioner. After considering the parties' briefs and the arguments of counsel, and good cause appearing, the court recommends respondent's motion be granted in part, denied in part, and deferred in part for the reasons set forth below.*fn1
In 2005, the California Supreme Court affirmed petitioner's conviction and sentence on appeal. People v. Cornwell, 37 Cal. 4th 50. The United States Supreme Court denied certiorari review on February 27, 2006. Cornwell v. California, 546 U.S. 1216.
In July 2004, while the state appeal was pending, petitioner filed his first state habeas petition, California Supreme Court ##S126032. (Lodged Document ("LD") 10.*fn2 ) The California Supreme Court denied that petition on June 24, 2009. (LD 18; Ex. 1 to Pet'r's Oppo. (Dkt. No. 76-1).) The court denied all claims on the merits and also denied some on various procedural grounds. (Id.)
Petitioner filed a first petition in this court on February 22, 2007. (Dkt. No. 15.) Because the state proceeding was pending, this case was stayed. (Dkt. No. 22.)
Petitioner filed what he refers to as a "supplemental" state petition on May 7, 2007. (LD 19.) However, the California Supreme Court specifically denied him the right to supplement the existing state petition. (Dkt. No. 76-1 at 6.) Instead, that court considered the "supplemental" state petition to be a "new original habeas corpus petition" and assigned it a separate case number, #S152880. (Id.) The California Supreme Court denied state petition #S152880 on February 10, 2010. (LD 23.) The court denied all claims on the merits and also denied most, but not all, of the claims on various procedural grounds. (Id.)
Petitioner filed an amended federal petition on February 8, 2011. (Dkt. No. 52.) On May 17, respondent filed the present motion to dismiss. (Dkt. No. 68.) Respondent argues fourteen claims or subclaims are procedurally barred, five are barred by the statute of limitations, and twelve are unexhausted. On August 8, petitioner filed a lengthy opposition. (Dkt. No. 76.) The opposition focuses primarily on procedural default. On October 4, this court granted respondent's unopposed request to defer litigation of the procedural default issues. (Dkt. No. 80.) On October 5, respondent filed a reply brief which addresses only the exhaustion and statute of limitations issues. (Dkt. No. 81.)
I. Statute of Limitations
A federal habeas petitioner has one year from the date his state petition becomes final to file a federal petition. 28 U.S.C. § 2244(d)(1)(A). The statute tolls the limitation period during state habeas proceedings:
The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
28 U.S.C. §2244(d)(2). In addition to statutory tolling, the limitations period is subject to equitable tolling where the petitioner can demonstrate diligence in pursuing his rights and "that some extraordinary circumstances stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Finally, claims in an amended petition may survive the limitations period if they "relate back" to claims in a timely-filed federal petition. Mayle v. Felix, 545 U.S. 644, 649-50 (2005).
Respondent argues claims 2(b), (f), (i), (l), and 21(J) of the amended petition are barred because they were not raised in the original, timely federal petition. As explained below, this court finds petitioner's state court petitions tolled the limitations period ...