The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Introduction & Background
Petitioner is a state prisoner proceeding with retained counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Respondent's motion to dismiss, filed on August 31, 2012, came on for hearing before the undersigned on October 18, 2012.*fn2 Justin Mixon and Chet Templeton appeared for petitioner; Jennifer Poe represented the respondent.
This habeas matter was stayed as to ground one pursuant to the procedure set forth in King v.Ryan, 564 F.3d 1133 (9th Cir. 2009) (citing Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003)), by Order filed on November 21, 2011, permitting petitioner to exhaust the second and third of his three claims. The stay was lifted by Order, filed on June 5, 2012, petitioner having filed an amended petition, on May 16, 2012, containing all three of his claims. In the amended petition, the following claims are set forth: 1) "robbery conviction must be reversed for insufficient evidence as the taking was not accomplished by force or fear"; 2) "insufficient evidence to support jury's findings that the offense was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members"; 3) "gang enhancement under [Cal. Pen. Code] § 186.22(B)(1) must be reversed for insufficient evidence of the gang's primary activities." Amended Petition (AP), pp. 2,*fn3 18, 25, 40.
Respondent moves for dismissal of claims two and three on the ground that they were filed outside the one-year AEDPA statute of limitations. Motion to Dismiss (MTD), pp. 1-8.
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.
In 2007, petitioner was convicted of robbery, with enhancement allegations that the crime was committed in association with a street gang, a principal was armed with a firearm and petitioner had a firearm on his person or in a vehicle, for which he was sentenced to a term of fourteen years in state prison. MTD, p. 2; Amended Petition (AP), p. 9. Following petitioner's timely appeal to the Third District Court of Appeal, the appellate court affirmed the judgment on December 3, 2009. MTD, p. 2, Respondent's Lodged Document (hereafter, Lodged Doc.) 1 (unpublished appellate court opinion).*fn4 Petitioner's petition for ...