The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss the petition, filed on August 16, 2011 (docket # 11). Petitioner was convicted in Sacramento County Superior Court in 2008 of assault with a firearm and negligent discharge of a firearm and, with a sentencing enhancement found true, was sentenced to a determinate five-year state prison term. Petition, p. 1; Motion to Dismiss (MTD), p. 2, respondent's Lodged Document (hereafter, Rsp. Lod. Doc.) 1, Abstract of Judgment. Petitioner raises the following grounds: 1) ineffective assistance of counsel; 2) prosecutorial misconduct; 3) judicial bias; 4) biased jury; 5) malicious prosecution. Petition, pp. 4-14.*fn2
Respondent moves for dismissal on the ground that the petition is barred by the AEDPA one-year statute of limitations. See Motion to Dismiss (MTD). The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1):
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.
Petitioner was sentenced on May 16, 2008. Rsp. Lod. Doc. 1. The Third District Court of Appeal, on June 9, 2009, stayed the sentence for negligent discharge of a firearm, ordering the trial court to amend the abstract of judgment to that effect and, as modified, affirmed the judgment. MTD, p. 2, Rsp. Lod. Doc. 2, unpublished 3rd DCA opinion, filed on June 9, 2009; Rsp. Lod. Doc. 3, amended abstract of judgment filed on June 23, 2009. The state Supreme Court denied the petition for review on August 12, 2009. MTD, p. 2, Rsp. Lod. Doc. 4, Petition for review; Rsp. Lod. Doc. 5, Cal. Supreme Court denial of review, filed on August 12, 2009.
Respondent is correct that petitioner had ninety (90) days following the state Supreme Court's August 12, 2009, denial of the petition for review before the state court conviction became final, which is the period of time petitioner would have had to file a petition for writ of certiorari with the United States Supreme Court. MTD, p. 3, citing Supreme Court Rule 13; Bowen v. Roe, 188 F.3d 1157[, 1159] (9th Cir. 1999). Thus, as respondent contends, petitioner's conviction became final on November 10, 2009, and the one-year statute of limitations under AEDPA began to run the day following, on November 11, 2009. Id., citing Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001)(in turn citing Fed. R. Civ. P. 6(a)). Therefore, under 28 U.S.C. § 2244(d), petitioner had, absent any time for applicable tolling, until November 10, 2010, to file his federal habeas petition.
Respondent has set forth the three state collateral challenges respondent contends were brought by petitioner (MTD, p. 2)*fn3
The first habeas petition: - filed in Sacramento County Superior Court on August 4, 2010 (Rsp. Lod. Doc. 6) - denied on October 22, 2010 (Rsp. Lod. Doc. 7), citing, inter alia In re Robbins, 18 Cal.4th 770, 811-812, 812 ...