The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge
ORDER GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (Warden),
The parties have consented under 28 U.S.C. § 636(c) to the jurisdiction of the undersigned magistrate judge. For reasons stated below, the court finds that this action should be dismissed, with prejudice, as time-barred.
Pro se petitioner is a prisoner in state custody pursuant to a
conviction in California Superior Court, Los Angeles County, Case No.
BA336027. On September 15, 2008, the jury in that case convicted
Petitioner of six counts of second-degree robbery, and made
findings on various enhancement allegations. [See Lodg.*fn1
1, 2, 3.] On November 6, 2008, Petitioner was sentenced in
accordance with California's "Three Strikes" law (Cal. Penal Code
sections 667(b)-(i), 1170.12(a)-(d)) to a total prison term of
twenty-seven years and four months. [Lodg. 4, 5.]
Petitioner appealed. On August 4, 2009, Petitioner's appointed appellate counsel submitted an opening brief pursuant to People v. Wende, 25 Cal. 3d 436, 441, 158 Cal. Rptr. 839 (1979), requesting that the appellate court independently review the record for errors. [Lodg. 6.] On August 13, 2009, in accordance with instructions of the court [Lodg. 7], Petitioner personally submitted a letter to the appellate court raising a discovery claim. [Lodg. 9.]
On December 7, 2009, the state appellate court affirmed the conviction and sentence in a reasoned, unpublished decision. [Lodg. 10.] It appears from the record before this court that Petitioner did not submit a petition for review to the state supreme court. [See Petition at 3; MTD, Memorandum of Points and Authorities at 1.]
On May 26, 2011, Petitioner submitted an entirely unexhausted federal petition for writ of habeas to this court. [See case no. CV 11-4563-DOC(CW), docket no. 1.] On June 16, 2011, while that matter was pending, Petitioner submitted a habeas petition for filing in the state supreme court. [Lodg. 11.] He then asked this court to stay the federal petition pending resolution of the state matter, stating that he had been unaware of the exhaustion requirement. [See case no. CV11- 4563-DOC(CW), docket no. 8, filed June 23, 2011.] On August 10, 2011, the stay request was denied, and the federal petition dismissed without prejudice in accordance with Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)("District courts have the discretion to hold a mixed petition in abeyance pending exhaustion of the unexhausted claims. Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 1535, 161 L. Ed. 2d 440 (2005). We decline to extend that rule to the situation where the original habeas petition contained only unexhausted claims, but the record shows that there were exhausted claims that could have been included."). [See id., docket nos. 9, 10.]
On October 26, 2011, Petitioner's state habeas petition was summarily denied. [Lodg. 12.]
On November 4, 2011, Petitioner submitted this petition. [Docket no. 1.] On December 12, 2011, Respondent filed a motion to dismiss the petition as time-barred. [Docket no. 6.] In a minute order dated December 13, 2011, the court advised petitioner with respect to the statute of limitations and his options. [Docket no. 10.] After one extension of time was granted, Petitioner's response was due on or before February 13, 2012 [see docket no. 12]; no reply has been filed. The motion to dismiss is therefore ready for decision.
An application for federal habeas corpus relief on behalf of a person in custody pursuant to a state court judgment, filed after enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") on April 24, 1996, is subject to the one-year statute of limitations codified at 28 U.S.C. § 2244(d). See Duncan v. Walker, 533 U.S. 167, 176, 121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001); Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997); Wixom v. Washington, 264 F.3d 894, 895 (9th Cir. 2001).
The limitation period is calculated in light of Fed. R. Civ. P. 6(a).*fn2 See Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001). Under the "prison mailbox rule" of Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988), a document may be construed as filed on the date it was submitted to prison authorities for mailing. To benefit from this rule, a petitioner must be a prisoner, acting without assistance of counsel, and the document must have been delivered to prison authorities within the limitation period. See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003).*fn3
For petitioners, like the Petitioner here, whose convictions became final after AEDPA's enactment, the one-year limitation period begins running from the latest of four alternative dates:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...