FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This action proceeds on his January 11, 2011 petition. Respondent moves to dismiss this action upon the ground it is untimely. Petitioner opposes, asserting that he is entitled to a later start date of the statute of limitations because the state created an impediment to filing the petition, and that he is entitled to equitable tolling. For the reasons explained below, the motion to dismiss must be granted.
Petitioner was convicted of possessing and transporting cocaine for sale in 2002. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc.") 1. He admitted to two prior serious felony convictions within the meaning of the Three Strikes Law and was sentenced to twenty-five years to life. Lodg. Doc. 1-2. He appealed his conviction and it was reversed on appeal and remanded to the trial court, which eventually reinstated petitioner's original conviction and sentence. Lodg. Doc. 2-8. Petitioner appealed again and the California Court of Appeal, Third Appellate District affirmed. The California Supreme Court denied his request for review on July 8, 2009. Lodg. Doc. 9-12.
Petitioner did not file any state habeas petitions after the California Supreme Court's denial of review. The instant petition was constructively filed on January 4, 2011. Dckt. No. 1.
II. Statute of Limitations
A one-year limitations period for seeking federal habeas relief begins to run from the latest of the date the judgment became final on direct review, the date on which a state-created impediment to filing is removed, the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review or the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).
There is no statutory tolling of the limitations period "from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed . . . ." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). However, once a petitioner properly files a state post-conviction application the period is tolled, and remains tolled for the entire time that application is "pending." 28 U.S.C. § 2244(d)(2). "[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post-conviction application is "pending" during the intervals between a lower court decision and filing a new petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002). A federal habeas application does not provide a basis for statutory tolling. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
The limitations period may also be equitably tolled where a habeas petitioner establishes two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). In light of this pronouncement, the Ninth Circuit has reiterated that the threshold necessary to trigger equitable tolling is very high, and clarified that equitable tolling only applies where a petitioner shows that despite diligently pursuing his rights, some external force caused the untimeliness. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009).
Petitioner has the burden of showing facts entitling him to statutory and equitable tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
In this case, the statute of limitations began to run when petitioner's conviction became final on direct review. See 28 U.S.C. § 2244(d)(1)(A). The California Supreme Court denied review on July 8, 2009. Lodg. Doc. 12. The conviction became "final" within the meaning of section 2244(d)(1)(A) when the time for filing a petition for writ of certiorari expired ninety days later, on October 6, 2009. Supreme Ct. R. 13; Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). The one-year limitations period commenced running the following day. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Thus, petitioner had until October 6, 2010 to file his federal habeas petition. However, he did not file the instant petition until January 4, 2011. Absent tolling, his application in this court is nearly three months late.
Petitioner is not entitled to statutory tolling because he did not file any state petitions in the relevant time period. However, petitioner argues that he is entitled to a later start of the statute of limitations, and alternatively to equitable tolling of the statute of limitations.
Petitioner attaches a declaration attesting to the following facts. See Dckt. No. 16, Exh.
1. He declares that he was housed at Corcoran State Prison in the Security Housing Unit (SHU) from January 2008 until October 10, 2008; that he met Danny Cohea, his "jailhouse lawyer" in May 2008; and that Cohea agreed to assist him with this case in early September 2008. Id. at 53-54. Petitioner was placed on the transfer list for Salinas Valley State Prison, and he made arrangements so that his mother would function as a go-between for him and inmate Cohea so that Cohea could continue to work on petitioner's case. Id. at 54. Petitioner was transferred to SVSP on October 10, 2008; his legal materials were transferred with him. Id. ...