FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss this action as untimely. Dckt. No. 10. Petitioner opposes, arguing that he is excused from the one year statute of limitations because he is "actually innocent" of the crimes for which was convicted. Dckt. No. 16. For the following reasons, respondent's motion must be granted.
Petitioner was convicted of seven counts of forcible lewd acts with a child under the age of fourteen and was sentenced to forty-two years in prison. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof (" Lodg. Doc.") 1. He appealed his conviction, arguing that the prosecution of three of the counts violated the ex post facto clause of the United States Constitution. Lodg. Doc. 2. The California Court of Appeal, Third Appellate District, affirmed the conviction, and the California Supreme Court denied review on September 17, 2008. Lodg. Docs. 2-4.
Petitioner filed three state habeas petitions challenging his conviction. Two petitions were filed on December 5, 2008, one with the California Court of Appeal, Third Appellate District, and the other in the California Supreme Court. Lodg. Docs. 5, 7. The petition filed with the Court of Appeal was denied on December 18, 2008. Lodg. Doc. 6. The petition filed in the California Supreme Court was denied on June 10, 2009. Lodg. Doc. 8. Petitioner's third state habeas petition was filed in the California Superior Court for the County of Sacramento on September 3, 2009, and was denied on November 9, 2009. Lodg. Docs. 9, 10. The instant petition, which only challenges three of the seven counts for which petitioner was convicted, was filed on June 30, 2011.*fn2 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 retroactive 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).
Petitioner has the burden of proving he is entitled to statutory tolling. Banjo v. Ayers, 614 F.3d 946, 967 (9th Cir. 2012).
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 September 17, 2008. Lodg. Doc. 4. 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 December 16, 2008. 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 December 16, 2008 to file his federal habeas petition. However, he did not file the instant petition until June 30, 2011.
Defendant argues that even with statutory tolling petitioner failed to timely file his federal petition. Dckt. No. 10 at 3-6. Petitioner, who has the burden of showing facts entitling him to tolling, does not dispute that, even with statutory tolling, he failed to file his petition within the limitations period.*fn3 Petitioner claims, however, that he is excused from the one-year statute of limitations because he is actually innocent of the crimes for which he was convicted. Dckt. No. 15 at 2-3.
A credible claim of actual innocence constitutes an equitable exception to the statute of limitations. Lee v. Lampert, 653 F.3d 929, 932-33 (9th Cir. 2011). In order to qualify for this exception, however, a petitioner must show "that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup v. Delo, 513 U.S. 298, 327 (1995).
This exacting standard "permits review only in the 'extraordinary' case," but it "does not require absolute certainty about the petitioner's guilt or innocence." . . . As we have previously said, "where post-conviction evidence casts doubt on the conviction by undercutting the reliability of the proof of guilt, but not by affirmatively proving innocence, that can be enough to pass through the Schlup gateway to allow consideration of otherwise barred claims."
Lee, 653 F.3d at 938 (quoting House v. Bell, 547 U.S. 518, 539 (2006); Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir.2002)). "Schlup requires a petitioner 'to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical ...