Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This case is before the undersigned pursuant to the parties' consent. See 28 U.S.C. § 636. Respondent moves to dismiss this action as untimely. Resp.'s Mot. to Dismiss, Dckt. No. 9. For the following reasons, respondent's motion is granted.
Petitioner pled nolo contendere to second degree murder and assault with a deadly weapon, as well as to associated enhancements. Resp.'s Mot. to Dismiss, Docs. Lodged in Supp. Thereof (hereinafter "Lodg. Doc.") 1. On June 19, 2009, he was sentenced to a total prison term of 19 years to life.*fn1 Id. On July 13, 2009, an amended abstract of judgment was filed nunc pro tunc to June 19, 2009. Id. Petitioner failed to timely appeal his conviction. Lodg. Doc. 2. On May 10, 2010, he requested permission to belatedly file a notice of appeal. Id. The California Court of Appeal, Third Appellate District, denied his request on June 18, 2010. Lodg. Doc. 3.
On April 14, 2011, petitioner filed a petition for writ of habeas corpus in the California Superior Court for the County of Sacramento; it was denied on June 7, 2011.*fn2 Lodg. Docs. 4, 5. On June 19, 2011, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. That petition was denied on July 21, 2011. Lodg. Docs. 6, 7. He filed his last state petition on August 2, 2011, which the California Supreme Court denied on December 21, 2011.*fn3 Lodg. Docs. 8, 9.
Petitioner filed the instant petition on February 5, 2012. Pet., Dckt. No. 1 at 7.*fn4 He alleges that an indeterminate sentence was imposed in violation of his plea agreement and California contract law. Id. at 11-21.
II. Statute of Limitations
A one-year limitations period for seeking federal habeas relief begins to run from the date the judgment became final on direct review or the expiration of the time for seeking such 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. Carey v. Saffold, 536 U.S. 214, 223 (2002). A federal habeas application does not provide a basis for statutory tolling. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). Petitioner has the burden of showing facts entitling him to statutory tolling. Smith, 297 F.3d at 814, overruled on other grounds by Pace, 544 U.S. at 418.
A. Start Date of the Limitations Period
In this case, the statute of limitations began to run when petitioner's time for seeking direct review expired, rendering the judgment final. See 28 U.S.C. § 2244(d)(1)(A); see also Gonzales v. Thaler, 132 S.Ct. 641, 653-54 (2012) ("judgment becomes final at the 'expiration of the time for seeking such review'--when the time for pursuing direct review. . . in state court, expires."). Petitioner was sentenced on June 19, 2009.*fn5 Lodg. Doc. 1. Petitioner had 60 days from the date of judgment to file a notice of appeal seeking direct review in state court.*fn6 Cal. R. Ct. 8.308*fn7 ; see Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006) (finding an un-appealed conviction became final 60 days after the judgment of conviction).
Petitioner did not file a notice of appeal in state court within 60 days. Lodg. Docs. 2, 3.
The judgment therefore became final on August 18, 2009, and the one-year limitations period commenced running the following day, August 19, 2009. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Thus, petitioner had until August 18, 2010, to file his federal habeas petition. However, he did not file the instant petition until February 5, ...