FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 17, 2011, respondent filed the pending motion to dismiss, arguing that petitioner's federal habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed an opposition to the motion, and respondent has filed a reply.
By way of background, a Sacramento County Superior Court jury found petitioner guilty of carjacking with personal use of a firearm. On January 20, 2006, the trial court sentenced petitioner to five years in state prison to be served consecutive to a twenty-six year and four month sentence imposed for a prior carjacking, for a total aggregate term of 31 years and four months in state prison. On May 29, 2007, the California Court of Appeal for the Third Appellate District affirmed the 2006 judgment of conviction. On August 29, 2007, the California Supreme Court denied review. (Resp't's Lodged Docs. 1-6.)
Applying the mailbox rule*fn1 , on August 14, 2008, petitioner filed a federal habeas petition in this court. See CIV S-08-1928 EFB P. In response to this court's order to respond to that petition, respondent filed a motion to dismiss the petition because it contained unexhausted claims. (See Doc. No. 23.) Instead of filing an opposition to respondent's motion, petitioner moved to voluntarily dismiss his petition. (See Doc. No. 27.) On November 5, 2009, this court granted petitioner's request and dismissed his federal habeas petition without prejudice. (See Doc. No. 28.)
On December 18, 2009, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. On January 28, 2010, the state appellate court denied the petition and informed petitioner that he needed to first file a petition in the Sacramento County Superior Court. On April 26, 2010, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. On May 25, 2010, that court denied the petition. On June 9, 2010, petitioner filed a second petition for writ of habeas corpus in the Sacramento County Superior Court. On August 11, 2010, the court denied that petition as well. On August 23, 2010, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On April 20, 2011, the court denied that petition, citing to the decision in In re Robbins, 18 Cal.4th 770, 780 (1998). Finally, on October 9, 2010, petitioner filed a second petition with the California Supreme Court. On May 18, 2011, the state high court denied that second petition citing to the decisions in In re Robbins, 18 Cal.4th 770, 780 (1998), People v. Duvall, 9 Cal.4th 464, 474 (1995) and In re Swain, 34 Cal.2d 300, 304 (1949). (Resp't's Lodged Docs. 7-16.)
On June 16, 2011, petitioner commenced this action by filing a petition for writ of habeas corpus. Shortly thereafter, petitioner filed his first amended petition.
RESPONDENT'S MOTION TO DISMISS
Respondent moves to dismiss the pending federal petition, arguing that it is time- barred. Specifically, respondent argues that on August 29, 2007, the California Supreme Court denied petitioner's petition for review, causing petitioner's judgment of conviction to become "final" on November 27, 2007, when the time for filing a petition for writ of certiorari expired. Respondent argues that the one-year statute of limitations for filing a federal habeas petition began to run the following day, on November 28, 2007, and expired one year later on November 27, 2008. (Resp't's Mot. to Dismiss at 3-4.)
Respondent acknowledges that the proper filing of a state post-conviction application challenging a judgment of conviction tolls the one-year statute of limitations period. However, respondent argues that petitioner did not file his first petition for writ of habeas corpus in state court until 2010, long after the statute of limitations for the filing of a federal petition had expired. In addition, respondent acknowledges that petitioner filed subsequent petitions for writ of habeas corpus in state court but argues these state habeas petitions cannot not revive or restart the already expired statute of limitations clock. Moreover, respondent contends that the California Supreme Court denied petitioner's fourth and fifth state habeas petitions as untimely and therefore, those petitions could not serve to toll the limitations period in any event because they were not properly filed. Finally, respondent contends that petitioner's prior federal habeas action does not extend the statute of limitations because the filing of a federal petition for writ of habeas corpus does not qualify to toll the statute of limitations. (Resp't's Mot. to Dismiss at 4-6.)
II. Petitioner's Opposition
In opposition to respondent's motion to dismiss petitioner explains that in his prior habeas action in this court he chose to dismiss his case and return to state court because he understood that tolling would apply to the time he spent exhausting his unexhausted claims in state court. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 1.)
In reply, respondent contends that petitioner moved to dismiss his prior federal habeas action in this court on his own accord, and that the court simply honored his request. Respondent notes that the court did not mention anything about exhausting claims in state court in its order nor would it have reason to, given petitioner's request that the court dismiss his claims. Moreover, respondent contends that even if the court had discussed the option of petitioner returning to state court to exhaust his unexhausted claims, ...