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. 14. For the following reasons, the undersigned recommends respondent's motion be granted.
Petitioner pled guilty to discharging a firearm at an inhabited dwelling and admitted an enhancement for discharge of a firearm causing great bodily injury. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc.") 1, 2. He received a sentence of 28 years to life. Id. Petitioner appealed his conviction, and on December 5, 2006, the California Court of Appeal, Third Appellate District, affirmed the judgment. Lodg. Doc. 3. Petitioner did not seek review in the California Supreme Court. In May 2006, petitioner began filing state petitions, including eight habeas petitions and a petition for review, challenging various aspects of his trial proceedings. Lodg. Doc. 4-21. His last state petition was dismissed by the California Supreme Court on November 10, 2010.
Petitioner also previously filed a federal habeas petition in this court challenging the same conviction. See Owens v. Kramer, No Civ. S-08-1290 FCD EFB. That petition was filed on June 9, 2008 and was dismissed without prejudice on October 8, 2010. Petitioner filed the instant petition on July 11, 2011. In his petition, he alleges that the trial court unlawfully imposed a 25 years to life sentence enhancement.
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 the pronouncement in Pace, 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), overruled on other grounds by Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
A. Start Date of the Limitations Period
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 Court of Appeal, Third Appellate District, affirmed petitioner's conviction on December 5, 2006. Petitioner did not seek review in the California Supreme Court. The conviction became final within the meaning of section 2244(d)(1)(A) when the time for filing a petition for review expired on January 14, 2007, forty days after the California Court of Appeal filed its decision. See Cal. Ct. R. 8.264(b)(1), 8.500(e); Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2008). 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 January 14, 2008 to file his federal habeas petition. However, he did not file the instant petition until July 11, 2011.*fn1 Absent tolling, his application in this court is more than three years late.
Petitioner argues that the federal statute of limitations did not commence running at the time his conviction became final on direct review; rather, he contends that the limitations period began to run in June 2010, when petitioner first discovered the factual predicate of his claim. Dckt. No. 16 at 5-6;*fn2 see 28 U.S.C. § 2244(d)(1)(D). Petitioner claims that it was not until he read the holding in People v. Botello, 183 Cal. App. 4th 1014 (2010), in June of 2010 "that [he] discovered that his 25 years to life sentence enhancement was unauthorized." Dckt. No. 6 at 5-6. Section 2244(d)(1)(D) provides that the limitation period for filing a federal habeas petition runs from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." However, the "factual predicate" of a claim is discovered "when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance." Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001). ...