FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently before the court is respondent's motion to dismiss the claims in the amended petition, with the exception of the single claim asserted in the original petition, upon the ground that they are untimely. For the reasons explained below, the court recommends respondent's motion be granted.
Petitioner was convicted of first degree murder. Dckt. No. 34, Lodg. Doc. 3 at 2. The trial court found that petitioner had two prior serious felony convictions within the meaning of California's Three Strikes Law and sentenced him to seventy-five years to life. Id. Petitioner appealed and the California Court of Appeal, Third Appellate District, affirmed the conviction.
Dckt. No. 34, Lodg. Doc. 3. The California Supreme Court denied his request for review on March 19, 2008. Dckt. No. 34, Lodg. Docs. 5-6.
On August 1, 2009, petitioner filed a state habeas petition in the Sacramento Superior Court alleging that the imposed sentence violated the terms of a plea agreement from a prior case. Dckt. No. 75, Lodg. Doc. 1. That petition was denied on September 22, 2009. Id. Petitioner then filed a habeas petition in the California Court of Appeal, Third Appellate District, which was denied on October 29, 2009. Dckt. No. 75, Lodg. Doc. 2. On November 10, 2009, petitioner filed a third state petition in the California Supreme Court. That petition was denied on March 30, 2010. Dckt. No. 75, Lodg. Doc. 3.
Petitioner initially filed a petition for writ of habeas corpus in this matter on October 14, 2008.*fn1 Dckt. No. 1. In the initial federal petition, petitioner alleged a single claim--that an instructional error allowed the jury to impermissibly consider his prior bad acts in reaching a verdict. Id. Then, on April 26, 2010, while the initial federal petition was still pending, petitioner filed a second petition in this court, challenging a different aspects of the same trial--that the trial court breached an earlier plea agreement by sentencing petitioner under California's Three Strikes Law. Dckt. No. 42, see also Case No. 2:10-cv-0995 MCE EFB P, Dckt. No. 1. In both cases, petitioner sought leave to amend his petition to add additional claims. Given that the two petitions challenged the same conviction and involved common questions of fact and law, the undersigned consolidated the two cases and granted petitioner leave to file an amended petition containing the claims raised in his initial federal petition, the petition filed in Case No. 2:10-cv-0995 MCE EFB P, and those identified in petitioner's motion for leave to amend. See Dckt. No. 57 at 3. Plaintiff filed a first amended petition on March 17, 2011. Dckt. No. 65. Pending before the court is respondent's motion to dismiss the newly asserted claims contained in the amended petition on the ground that they are untimely. Dckt. No. 74.
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 this pronouncement, 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); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
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 March 19, 2008. Lodg. Doc. 12. 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 June 18, 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 June 18, 2009 to file his federal habeas petition.
Petitioner's initial federal petition was filed on October 14, 2008, which was within the one year limitation period. Thus, the single claim asserted in that petition is not barred by the statute of limitations. However, the petition filed in Case No. 2:10-cv-0995 MCE EFB P was not filed until April 21, 2010, and the amended petition was not filed in this court until March 17, 2011.*fn2 Respondent contends that the new claims contained in the amended petition, including those claims asserted in the petition filed in Case No. 2:10-cv-0995 MCE EFB P, are barred by the statute of ...