The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition pursuant to 28 U.S.C. § 2254. This case proceeds on petitioner's first amended petition. On February 6, 2004, petitioner was convicted in Shasta County Superior Count of escape by force or violence (Cal. Pen. Code § 4532(b)(2)) and simple escape (Cal. Pen. Code § 4532(b)(1)), was found to have had two prior strike convictions and was sentenced to a term of 27 years to life.*fn1 Petition, p. 1; Motion to Dismiss (MTD), p. 1, citing Respondent's Lodged Document 4, p. 1. In this petition, petitioner raises the following grounds, alleging violations of his rights under both the state and federal constitutions: 1) due process violation when the terms of a prior (1991) plea bargain involving future prison sentence enhancements were reneged upon in the imposition of the sentence in the instant case; 2) ineffective assistance of counsel when trial counsel failed to investigate terms of the prior plea agreement with respect to future enhancements and to seek specific performance thereof; 3) trial court error violated due process when evidence petitioner threatened Officer Hildenstab with a gun was allowed; 4) trial court violated due process by refusing petitioner's requested instruction that would have informed jury that petitioner's gun threat was not force. See Petition.
Respondent moves for dismissal on the ground the instant petition is untimely under the AEDPA. See MTD..
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.
Under 28 U.S.C. § 2244(d)(2):
The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
Following the March 4, 2005, affirmance of judgment by the state appellate court, petitioner filed a petition for review in the California State Supreme Court on April 11, 2005, which was denied on May 11, 2005. MTD, p. 3, citing Rsp. Lodged Docs. 4-6. Petitioner's conviction became final on August 9, 2005, ninety (90) days after the state supreme court denied his petition for review on direct appeal on May 11, 2005. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) ("holding] that the period of 'direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the [ninety-day] period within which a petitioner can file a petition for a writ of certiorari with the United States Supreme Court, whether or not the petitioner actually files such a petition."). As respondent observes (MTD, p. 3), the AEDPA statute began to run the following day, on August 10, 2005. Patterson v. Stuart, 251 F.3d 1243, 1246 (9th Cir. 2001). Therefore, absent any applicable tolling, petitioner had until August 9, 2006, to file a timely federal petition.
Petitioner's first petition for writ of habeas corpus in the state
superior court, by liberal application of the mailbox rule,*fn2
was filed on December 2, 2009 (but file-stamped December 7,
2009), and was denied on January 27, 2010, citing, inter alia, In re
Robbins, 18 Cal.4th 770, 780-781 (1998). Rsp. Lodged Docs. 11-12. His
petition to the Third District Court of Appeal, per mailbox rule, was
filed on March 11, 2010 (file-stamped April 14, 2010), and was denied
on April 22, 2010. Rsp. Lodged Docs. 13-14. His habeas petition to the
state supreme court, on May 3, 2010, under mailbox rule (file-stamped
on May 6, 2010), was denied on December 15, 2010 (with text docket
entry citing In re Robbins, 18 Cal.4th 770, 780 (1998). Rsp. Lodged
Docs. 15-16. Petitioner filed his original federal habeas petition
(file-stamped March 1, 2001), by application of the mailbox rule, on
February 14, 2011.
As respondent observes, both the Shasta County Superior Court and the California Supreme Court, citing In re: Robbins, supra, found the petition untimely. MTD, p. 3. The United States Supreme Court has explained that in order for a state habeas petition to be "properly filed" for purposes of statutory tolling, the petition's delivery and acceptance must be in compliance with the laws and rules governing such filings. Pace v. DiGuglielmo, 544 U.S. 408, 413-14, 125 S.Ct. 1807 (2005). "[T]ime limits, no matter their form, are 'filing' conditions." Pace, at 417, 125 S.Ct. at 1814. "When a ...