FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court are respondents' motion to dismiss the pending federal habeas petition as untimely and petitioner's motion for equitable tolling of the applicable one-year statute of limitations.
Before addressing the merits of the parties' motions, the court will briefly summarize the lengthy procedural history of this federal habeas corpus action.
On August 31, 1992, following his conviction on charges of first degree murder with personal use of a firearm, petitioner was sentenced in Plumas County Superior Court to a term of 25 years to life in state prison, plus a consecutive five year term of imprisonment on a firearm enhancement. (June 11, 1999 Amended Petition (hereinafter "Am. Pet.") at 1.)
On October 21, 1993, petitioner's conviction was affirmed on appeal by the California Court of Appeal for the Third Appellate District. (Id.; Resp't Aug. 13, 1999 Mot. to Dismiss (hereinafter MTD) at 2.) On December 1, 1993, petitioner filed a petition for review in the California Supreme Court, claiming that the trial court had erred when it: (1) failed to sever petitioner's trial from that of his co-defendant; (2) admitted his co-defendant's extra-judicial statements into evidence at petitioner's trial; (3) admitted petitioner's confession into evidence at his trial; (4) denied petitioner's motion for a change of venue; and (5) failed to conduct individualized voir dire during jury selection. (MTD, Ex. A.) That petition for review was denied on January 19, 1994. (Am. Pet. at 2; MTD at 2.)
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) was enacted. Thereafter, on December 13, 1996, petitioner filed a petition for writ of habeas corpus in the Plumas County Superior Court, claiming that his trial counsel had rendered ineffective assistance. (Am. Pet. at 2; Answer, Vol. III, Ex. 12.) That petition was denied on May 5, 1997 for failure to present a "prima facie case" and because the court found that "[petitioner's] claims are procedurally barred, as the facts upon which there [sic] were based were known to him at the time of his appeal, and some of his claims were presented and rejected on appeal." (Am. Pet. at 2; Answer, Vol. III, Ex. 13 at 3.)
On May 23, 1997, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Id.) That petition was denied on June 5, 1997.*fn1 (Id.) On June 26, 1997, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, raising ineffective assistance of counsel claims. (Answer, Vol. III, Ex. 15.) That petition was summarily denied on November 25, 1997. (Id.)
On December 12, 1997, petitioner filed his original federal petition for writ of habeas corpus in this court. After petitioner's motion for leave to amend was granted, an amended habeas petition was filed on June 11, 1999. On August 6, 1999, respondents filed a motion to dismiss the amended federal petition contending, among other things, that petitioner's claims were barred by the one-year AEDPA statute of limitations contained in 28 U.S.C. § 2244(d)(1). On October 4, 1999, petitioner filed a related motion for equitable tolling of the statute of limitations.*fn2 On March 3, 2000, this court recommended that petitioner's motion for equitable tolling be granted and that respondent's motion to dismiss be denied. (Doc. No. 47.) By order dated July 31, 2000, United States District Judge William B. Shubb adopted those findings and recommendations, but also found that petitioner was entitled to statutory tolling of the AEDPA statute of limitations, and issued an order granting petitioner's motion for tolling and denying respondents' motion to dismiss. (Doc. No. 50.) On August 18, 2000, respondents filed a motion for reconsideration of the July 31, 2000 order. (Doc. No. 51.) On September 13, 2000, the motion for reconsideration was denied. (Doc. No. 57) In his order denying reconsideration, Judge Shubb clarified that he had found that petitioner was entitled to statutory tolling of the AEDPA statute of limitations and that "[b]ecause the court finds that statutory tolling applies, it does not reach the issue of equitable tolling." (Id. at 2 n.1.)
On September 13, 2004, this court filed findings and recommendations recommending that petitioner's application for a writ of habeas corpus be granted in part and denied in part. (Doc. No. 73.) On October 26, 2004, Judge Shubb adopted those findings and recommendations and judgment was entered accordingly. (Doc. No. 76.) On November 5, 2004, the district court entered an amended order adopting the September 13, 2004 findings and recommendations. (Doc. No. 80.)
On November 5, 2004, respondents filed an appeal of both the October 26, 2004 judgment and the September 13, 2000 order denying the motion to dismiss the petition as untimely. On April 10, 2006, the United States Court of Appeals for the Ninth Circuit issued an order reversing the district court's order denying respondents' motion to dismiss. (Doc. No. 90.) Citing the then-recent decisions in Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) and Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005), the Ninth Circuit concluded that petitioner was not entitled to statutory tolling of the AEDPA statute of limitations during the time his state habeas petitions were pending because the state courts had denied the petitions both on the merits and as untimely and therefore they were not "properly filed" for purposes of statutory tolling. (Ninth Circuit Memorandum dated April 10, 2006 (Doc. No. 90), at 2.) The Ninth Circuit therefore remanded petitioner's claim of entitlement to equitable tolling of the AEDPA statute of limitations to this court "for further proceedings." (Id.)*fn3
A status conference was held on June 2, 2006. The parties were directed to file briefing addressing whether petitioner was entitled to equitable tolling of the AEDPA statute of limitations. On July 17, 2006, petitioner filed his responsive brief regarding equitable tolling. (Doc. No. 104.) On August 14, 2006, respondent filed his responsive brief (Doc. No. 105) , and on September 5, 2006 and October 6, 2006, petitioner filed reply briefs. (Doc. Nos. 106 & 109.)
On October 10, 2006, a hearing was held on petitioner's claim of entitlement to equitable tolling of the statute of limitations. After the hearing, the parties were allowed to file additional letter briefs with citations to cases they deemed relevant to the equitable tolling issue before the court. On October 18, 2006, respondent filed his responsive letter brief, and on October 19, 2006, petitioner filed his responsive brief. (Doc. Nos. 112 & 113.)
On February 8, 2008, the Ninth Circuit Court of Appeals issued its decision in Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008) in which the court held that a federal habeas petitioner was entitled to equitable tolling of the AEDPA statute of limitations where he had waited to file his petition in reliance on Ninth Circuit precedent which was subsequently overruled by the U.S. Supreme Court. On February 12, 2008, petitioner filed a supplemental brief addressing the Harris decision and its potential impact upon resolution of the issue pending before the court in this case. (Doc. No. 119.) On March 25, 2008, respondent filed a response to petitioner's supplemental brief (Doc. No. 123), and on April 1, 2008, petitioner filed a reply. (Doc. No. 124.)
II. Applicable Legal Standards
Because this action was filed after April 26, 1996, the provisions of the AEDPA are applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The AEDPA imposed a one-year statute of limitations on the filing of federal habeas petitions. Title 28 U.S.C. § 2244 provides as follows:
(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 ...