The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner, proceeding without counsel, with an application for petition of writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims that the trial court failed to conduct a competency hearing. The parties have consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Presently before the court is respondent's motion to dismiss the pending habeas petition as barred by the statute of limitations. Petitioner filed an opposition to the motion and respondent filed an amended reply.*fn1 For the reasons set forth below, the undersigned finds that respondent's motion to dismiss should be granted.
Petitioner does not dispute that the statute of limitations period expired before filing the instant petition. However, to assist the court in evaluating petitioner's claim that he is entitled to equitable tolling, the court first addresses the issue of statutory tolling.
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted. Section 2244(d)(1) of Title 8 of the United States Code provides:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). Section 2244(d)(2) provides that "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" the limitations period. 28 U.S.C. § 2244(d)(2).
The relevant chronology of this case is as follows: 1. Petitioner was convicted on May 5, 2003, of felony vandalism and making terror threats. (Respondent's Lodged Document ("LD") 1.) On June 6, 2003, petitioner was sentenced to twenty-five years to life with the possibility of parole. (LD 1.) Another twenty-five year to life sentence was stayed pursuant to California Penal Code § 667(b). (LD 1.)
2. Petitioner appealed, and on August 3, 2004, the California Court of Appeal, Third Appellate District, affirmed the judgment. (LD 2.)
3. Petitioner filed a petition for review in the California Supreme Court. (LD 3.) The California Supreme Court denied the petition for review without comment on October 13, 2004. (LD 4.)
4. Petitioner filed no post conviction collateral challenges in state court. 5. Pursuant to Rule 3(d) of the Federal Rules Governing Section 2254 Cases, the instant action was constructively filed on June 10, 2011. (Dkt. No. 1.)
The statute of limitations begins to run when the petitioner's criminal judgment becomes final. The California Supreme Court denied the petition for review on October 13, 2004. (LD 4.) Petitioner's conviction became final ninety days later, on January 11, 2005, when the time for seeking certiorari with the United States Supreme Court expired. Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). The AEDPA statute of limitations period began to run the following day, on January 12, 2005. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Absent tolling, petitioner's last day to file his federal petition was on January 12, 2006.
Petitioner filed no state post-conviction collateral challenges to his conviction. Therefore, the statute of limitations period expired on January 12, 2006. Petitioner filed the instant action on June 10, 2011, over five years after the limitations period expired. Accordingly, this action is time-barred unless petitioner can demonstrate that he is entitled to equitable tolling.
In the petition, petitioner states that he "was unable to file this petition within the AEDPA time limits due to mental instability." (Dkt. No. 1 at 5.) Petitioner provides the following facts:
Petitioner is an enhanced outpatient inmate, and has a lifetime of hearing voices and seeing things. Petitioner could not possibly file any petition due to his mental health condition. (Dkt. No. 1 at 5.) In his opposition to the motion, petitioner states that he is a developmentally disabled person who has been in the Enhanced Outpatient Program ("EOP") and CCCMS*fn2 Mental Health Care System in the county jail and state prison since 2003. (Dkt. No. 13 at 5.) Petitioner provided medical records demonstrating that he has been diagnosed with Schizophrenia, Paranoid Type, and depression, and was prescribed antipsychotic drugs. (Dkt. No. 13 at 15-20.)
Respondent argues that petitioner failed to provide factual details as to how any mental impairment prevented petitioner from timely challenging the 2003 conviction. Moreover, respondent contends that medical records demonstrate petitioner was functioning, stable on medications, and even held a job as a porter. (Dkt. No. 18 at 5.)
In Holland v. Florida, 130 S. Ct. 2549, 2560, 2562, 2564 (2010), the Supreme Court recognized that the AEDPA statute of limitations "may be tolled for equitable reasons" when the petitioner has made a showing of "extraordinary circumstances." To be entitled to equitable tolling, petitioner must demonstrate "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary ...