The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is respondent's motion to dismiss the petition as untimely filed. Petitioner has filed an opposition to that motion and respondent has filed a reply. For the reasons discussed below, the undersigned will recommend that respondent's motion to dismiss be granted.
In 1999, petitioner shot and killed Israel Cervantes by firing two shots into his chest. He fired additional shots toward Cervantes' friends. Petitioner admitted as much at trial, but argued that he did so in reasonable self defense, as he believed Cervantes and his friends were members of the Sureno gang and that Cervantes -- whom petitioner had never met before -- was about to kill him. After petitioner shot Cervantes, other members of Cervantes' group moved toward petitioner. Petitioner fired shots in their direction into the air to scare them off, and fled. (Dkt. No. 21-1 at 4-5.)
Petitioner now challenges a 2000 judgment of conviction entered against him in the Solano County Superior Court on charges of second degree murder (Cal. Penal Code § 187(a)) with the use of a firearm (§§ 12022.5(a)(1), 12022.53(d)) and three counts of assault with a firearm (id., § 245(a)(2)) with the use of a firearm (id., §§ 12022.5(a), (d) and 1192.7(c)(8)). Petitioner, who had two prior felony convictions for possession of cocaine for sale, was sentenced to state prison for an indeterminate term of 40 years to life: 15 years to life for the murder, plus 25 years to life for the firearm use. He was also sentenced to a consecutive determinate term of seven years for assault with a firearm. (Dkt. No. 1 ("Ptn."); Dkt. No. 21-1, Ex. A ("Opinion") at 2; Dkt. No. 21-1, Ex. B at 25-26*fn1 .)
Petitioner appealed from his conviction to the California Court of Appeal for the First Appellate District. (Opinion at 2.) On September 28, 2001, the state appellate court affirmed the judgment of conviction. (Id.) Petitioner then sought review in the California Supreme Court, which was denied on December 12, 2001. (Dkt. No. 21-2, Ex. C at 2.)
On August 27, 2002, petitioner filed a habeas corpus petition in the California Supreme Court. (Dkt. No. 21-2, Ex. E at 62-76.) The petition was denied on February 11, 2003. (Dkt. No. 21-2, Ex. F at 78.)
Five years later, on February 15, 2008, petitioner filed a habeas corpus petition in the California Court of Appeal, First Appellate District. (Dkt. No. 21-5, Ex. K at 83.) The petition was denied on February 28, 2008. (Id.)
On June 23, 2009, petitioner filed a petition for habeas corpus in the Solano County Superior Court. The superior court denied the petition on September 28, 2009, noting that it "challenges a conviction that occurred nine years ago in 2000 and may be denied for substantial delay[,]" with citations to In re Clark, 5 Cal. 4th 750 (1993) and In re Robbins, 18 Cal. 4th 770, 780 (1998). (Dkt. No. 1-3, Ex. E at 47-50.)
On October 23, 2009, petitioner filed a second habeas petition in the California Court of Appeal, First Appellate District, which was denied on October 29, 2009. (Dkt. No. 21-2, Ex. D at 60; Ex. G at 80.)
On November 13, 2009, petitioner filed a second habeas corpus petition in the California Supreme Court. (Dkt. No. 21-3, Ex. H at 2-48.) The petition was denied on May 20, 2010, with citation to In re Clark and In re Robbins, supra. (Dkt. No. 21-3, Ex. I at 50.)
On July 27, 2010, petitioner filed a federal habeas petition in the Northern District of California. (Ptn.) On August 26, 2010, the petition was transferred to this district. (Dkt. No. 5.)
Respondent contends that the one-year statute of limitations for the filing of a federal habeas petition in this case began to run on March 12, 2002, when petitioner's judgment of conviction became final; thus, absent tolling, petitioner's deadline for filing a federal petition was March 12, 2003. (Dkt. No. 21 ("Mtn.") at 5.) Respondent concedes that the limitations period was tolled for 5 1/2 months between August 27, 2002 and February 11, 2003, while petitioner's first state habeas petition in the California Supreme Court was pending. (Id. at 7-8.) However, respondent contends, by the time petitioner next sought post-conviction review in the state courts in February 2008, the statute of limitations had long expired and his subsequent state petitions ...