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 petition on the grounds that it is untimely and contains one unexhausted claim. For the reasons explained below, the undersigned recommends respondent's motion be granted.
Petitioner was convicted of continuous sexual abuse of a child under the age of 14 and sentenced to 16 years in prison. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc.") 1. He appealed and the California Court of Appeal, Third Appellate District, affirmed the conviction. Lodg. Doc. 2. The California Supreme Court denied his request for review on April 1, 2009. Lodg. Docs. 3-4.
On January 24, 2010, petitioner filed a state habeas petition in the El Dorado County Superior Court challenging his conviction. Lodg. Doc. 5. That petition was denied on February 16, 2010. Lodg. Doc. 6. On March 18, 2010, petitioner filed a second state habeas petition in the California Court of Appeal, Third Appellate District, which was denied on April 1, 2010. Lodg. Doc. 7-8. Petitioner's third state habeas petition was filed in the California Supreme Court on October 31, 2010. Lodg. Doc. 9. That petition was summarily denied on May 18, 2011. Lodg. Doc. 10.
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 if the second petition was filed within a "reasonable time" after the denial of the first. Carey v. Saffold, 536 U.S. 214, 223 (2002). An unjustified delay of six months, or 180 days, is presumptively unreasonable. Evans v. Chavis, 546 U.S. 189, 201 (2006); Waldrip v. Hall, 548 F.3d 729, 731 (9th Cir. 2008).
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 April 1, 2009. 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 June 30, 2009. 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 30, 2010 to file his federal habeas petition. The instant petition was filed on June 2, 2011.*fn2 Absent tolling, the petition is nearly one year late.
Respondent concedes that petitioner's first two state habeas petitions were properly filed and that petitioner is therefore entitled to tolling from the date the first petition was filed, January 24, 2010, to the date the second petition was denied, April 1, 2010. Dckt. No. 14 at 4.*fn3
Respondent argues, however, that the petitioner is not entitled to interval tolling between the denial of the second state petition and the filing of his habeas petition in the California Supreme Court because the latter petition was not "properly filed." Id. Respondent contends that the third state petition was untimely, and therefore not properly filed, because ...