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 an application for petition of writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently before the court is respondent's December 15, 2011 motion to dismiss the pending habeas petition as barred by the statute of limitations.
On January 26, 2012, the court issued an order to show cause in response to petitioner's failure to file an opposition. (Dkt. No. 10.) On March 1, 2012, the court recommended that this action be dismissed as time-barred (dkt. no. 12), but the recommendations were vacated on May 1, 2012, and petitioner was granted an additional thirty days in which to oppose the motion (dkt. no. 16). On June 15, 2012, the court recommended dismissing the action as time-barred (dkt. no. 17), but on July 18, 2012, the findings and recommendations were vacated, and petitioner was granted up to and including August 20, 2012, in which to file an opposition to the motion to dismiss, and petitioner was cautioned that no further extensions of time would be granted. (Dkt. No. 19.) On August 3, 2012, petitioner filed a document styled "objections to the findings and recommendations and reply to the motion to dismiss." (Dkt. No. 20.) However, the August 3, 2012 filing was presented to prison officials for mailing on July 21, 2012, so it is unlikely that petitioner had benefit of the July 18, 2012 order in preparing the August 3 filing. On August 17, 2012, respondent filed a reply to the objections. (Dkt. No. 21.) On September 4, 2012, petitioner filed a response to respondent's reply. (Dkt. No. 22.)
Under Local Rule 230(l), the court contemplates the filing of a motion, an opposition, and a reply. While petitioner's September 4, 2012 response is technically a sur-reply, in light of petitioner's difficulty in receiving court orders, and the crossing in the mail between the July 18, 2012 order and petitioner's August 3, 2012 response, the court will consider both the August 3, 2012 filing, and the September 4, 2012 filing, as petitioner's opposition to the motion.
For the reasons set forth below, the court recommends that respondent's motion to dismiss be granted, and this action be dismissed.
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act
("AEDPA") was enacted. Section 2244(d)(1) of Title 8 of the United States Code provides:
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.
28 U.S.C. § 2244(d)(1). Section 2244(d)(2) provides that "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" the limitations period. 28 U.S.C. § 2244(d)(2).
The relevant chronology of this case is as follows: 1. Petitioner was convicted on May 1, 2008, of corporal injury to his spouse with great bodily injury under circumstances involving domestic violence and causing the victim to become comatose due to brain injury. (Dkt. Nos. 1; 7.) In a bifurcated proceeding, the trial court found petitioner had suffered one prior strike conviction, and a prior serious felony conviction. (Respondent's Lodged Document ("LD") 1-2.) On July 17, 2008, petitioner was sentenced to eighteen years in state prison. (Dkt. No. 1 at 1.)
2. Petitioner appealed, and on January 13, 2010, the California Court of Appeal, Third Appellate District, affirmed the judgment. (LD 2.)
3. On February 12, 2010, petitioner filed a petition for review in the California Supreme Court. (LD 3.) The California Supreme Court denied the petition for review on March 24, 2010. (LD 4.)
4. On June 18, 2008,*fn1 petitioner filed a petition for writ of habeas corpus in the Butte County Superior Court. (LD 5.) On June 25, 2008, the petition was denied. (LD 6.)
5. On October 3, 2011, petitioner filed a petition for writ of habeas corpus in the Butte County Superior Court. (LD 7.) The petition was denied on November 4, 2011. (LD 8.)
6. Pursuant to Rule 3(d) of the Federal Rules Governing Section 2254 Cases, the instant action was constructively filed ...