The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding with appointed counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's December 6, 2011, motion to dismiss on the grounds that this action is barred by the statute of limitations. Doc. 32. A hearing was held before the undersigned on April 12, 2012. Barry Morris appeared for petitioner and Jamie Scheidegger appeared for respondent.
The issue here involves the seeking of equitable tolling of the AEDPA statute of limitations on account of alleged attorney gross negligence. The specific issue of note within this larger issue concerns the time period in which the grossly negligent acts occur -- before or after the expiration of the AEDPA limitations period. For the reasons that follow, the undersigned finds that all of the grossly negligent actions took place after expiration of the limitations period even though negligent actions took place before.
This case has a complicated history that is pertinent to the instant motion.
Petitioner, proceeding pro se, filed an original federal habeas petition on March 29, 2004, which was timely under federal law. The petition included one exhausted claim and several unexhausted claims. On May 6, 2004, the undersigned appointed the Federal Defender to represent petitioner and Joseph Wiseman, a panel attorney was assigned. On July 15, 2004, a scheduling conference was held and petitioner and Mr.Wiseman agreed to stay and abey the petition in order to exhaust further claims. Doc. 8. Respondent's counsel, Jamie Scheidegger was also present at this conference. Id. The undersigned instructed counsel to file information relating to exhaustion in 30 days, id , i.e., an exhausted claims only petition or a decision not to exhaust. On August 12, 2004, rather than seek to stay the matter, Mr. Wiseman filed a motion to dismiss the petition without prejudice so he could exhaust further claims and then return to this court with an amended petition. Docs. 10, 11.*fn1 On September 14, 2004, the undersigned memorialized the self-executing dismissal without prejudice. Doc. 13; see Fed. R. Civ. P 41 (a)(1) (i). On June 3, 2011, nearly seven years later, an amended petition was filed. Doc. 15. Concerned about the lapse in time between filings and that the California Supreme Court denied the final state petition in 2007, the undersigned ordered petitioner to show cause why the case should not be dismissed for being untimely. Mr. Wiseman indicated that another attorney should be appointed to represent petitioner, as petitioner may fault Mr. Wiseman's representation.
Barry Morris was then appointed as attorney for petitioner and received the case file from Mr. Wiseman. After reviewing the case file, Mr. Wiseman suggested that respondent be served with the petition, as the best way to approach the statue of limitations issue would involve a motion to dismiss being raised by respondent. Respondent was served and filed the instant motion to dismiss.
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 convicted of first degree murder and attempted robbery. Lodged Document (Lod. Doc.) 1. On January 25, 2002, petitioner was sentenced to an indeterminate prison term of life without the possibility of parole. Id. On July 23, 2003, the California Court of Appeal affirmed the judgment. Lod. Doc. 2. The California Supreme Court denied review on October 1, 2003. Lod. Docs. 3, 4. Petitioner's conviction became final 90 days later, on December 30, 2003, when the time to file a petition for writ of certiorari in the United States Supreme Court expired. Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). Time began to run the next day, on December 31, 2003. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is, until December 30, 2004, to file a timely federal petition, absent applicable tolling. While petitioner filed the original petition on March 29, 2004, that petition was dismissed without prejudice*fn2 , and the first amended petition filed on June 3, 2011, is not timely unless petitioner is entitled to statutory or equitable tolling.
Petitioner filed three state post-conviction collateral actions:
1. April 1, 2004: First habeas petition filed in Sacramento County Superior Court, by petitioner pro se. Lod. Doc. 5. The petition was denied on May 6, 2004, in a reasoned opinion. Lod. Doc. 6.
2. September 28, 2004: Second petition filed in the California Court of Appeal. Lod. Doc. 7. The petition was denied on October 7, 2004, with a citation to People v. ...