The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the petition filed August 5, 2011. (Dkt. No. 11) Petitioner challenges his 2004 conviction for attempted murder, shooting at an occupied vehicle, and several enhancements. Petitioner is serving a sentence of 40 years to life imprisonment.
The amended petition raises the following claims. First, petitioner alleges that the trial court failed to advise him of his constitutional rights. (Dkt. No. 11 at 5-9.) Second, petitioner alleges that appellate counsel was ineffective for failing to raise a claim alleging denial of the right to a speedy trial. (Id. at 10-13.) Third, petitioner alleges that appellate counsel was ineffective for failing to raise a claim of ineffective assistance of counsel based on trial counsel's alleged failure uphold petitioner's speedy trial rights. (Id. at 14-18.) Fourth, petitioner alleges that appellate and trial counsel were ineffective for failing to raise a claim alleging that the prosecutor suppressed evidence favorable to the defense. (Id. at 19-27.) Fifth, petitioner alleges that appellate counsel was ineffective for failing to raise an ineffective assistance of counsel claim based on trial counsel's alleged failure to investigate the plea bargain offered to petitioner's co-defendant. (Id. at 28-35.) Sixth, petitioner alleges that appellate counsel was ineffective for failing to raise an ineffective assistance of counsel claim based on trial counsel's alleged failure to argue that the prosecutor did not act with due diligence in his attempt to produce petitioner's co-defendant at trial. (Id. at 35-43.) Seventh, petitioner alleges that appellate counsel was ineffective for failing to argue that the trial court failed to advise petitioner of his constitutional rights. (Id. at 44-47.)
Pending before the court is respondent's December 28, 2011 motion to dismiss on grounds that this action is barred by the statute of limitations. After carefully reviewing the record, the undersigned recommends that respondent's motion be granted.
A. When Petitioner's Conviction Became Final
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.
On June 14, 2006, the California Supreme Court denied petitioner's petition for review. (Respondent's Lodged Document No. 4.) The time to seek direct review ended ninety days later on September 12, 2006, when the period to file a petition for writ of certiorari in the Supreme Court expired. Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). The statue of limitations began running the following day, i.e. on September 13, 2006. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year from that date to file a timely federal habeas corpus petition, i.e. until September 13, 2007.
Petitioner commenced the instant action on June 20, 2011, by filing a motion for an extension of time to file a habeas corpus petition. (Dkt. No. 1.) On June 29, 2011, the undersigned granted petitioner thirty days to file a habeas corpus petition pursuant to 28 U.S.C. § 2254 and directed the Clerk of the Court to send petitioner a habeas corpus petition form. (Dkt. No. 2.) On August 5, 2011, petitioner filed his habeas corpus petition. (Dkt. No. 11.)
While petitioner's motion for extension of time opened this action, it did not challenge the merits of petitioner's conviction. For that reason, the undersigned considers whether this action is timely based on the date petitioner filed his petition rather than on the date he filed his motion for extension of time. See Braggs v. Walker, 2011 WL 2709847 at *2 (N.D. Cal. 2011), citing Woodford v. Garceau, 538 U.S. 202, 210 (2003) (request for counsel in capital case did not suffice to make "pending" a habeas petition filed after the effective date of the Anti-Terrorism and Effective Death Penalty Act.)
The instant action is not timely unless petitioner is entitled to statutory or equitable tolling.
Legal Standard The period of limitation is tolled while a "properly filed" application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d)(2). Once a petitioner begins state collateral proceedings, a state habeas petition is "pending" during a full round of review in the state courts, including the time between a lower court decision and the filing of a new petition in a higher court, as long as the intervals between the filing of those petitions are "reasonable." Carey v. Saffold, 536 U.S. 214, 222-24 (2002). However, interval tolling ...