FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner with counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on the December 31, 2009 petition. Dckt. No. 1. Respondent's motion to dismiss was before the court for hearing on June 10, 2012. Carolyn Wiggin and David Porter of the Officer of the Federal Defender appeared on behalf of petitioner, and David Eldrige of the California Attorney General's Office appeared for respondent. After careful consideration of the moving and opposing papers and the arguments of counsel, and for the reasons explained below, the court finds that respondent's motion to dismiss must be denied.
Petitioner was convicted of voluntary manslaughter and personal use of a firearm in 2005. Dckt. No. 1 at 1.*fn1 Petitioner appealed and the California Court of Appeal affirmed the judgment. Documents Lodged ISO Resp.'s Mot. to Dismiss (hereinafter "Lodg. Doc."), No. 2. Petitioner filed a petition for review in the California Supreme Court, which denied the petition on October 25, 2006. Lodg. Docs. 3, 4.
Petitioner subsequently filed three state habeas petitions challenging his conviction. The first was filed in the Tehama County Superior Court on January 18, 2008, and was denied on April 28, 2008. Lodg. Docs. 5, 6. The second was filed on July 2, 2008, in the California Court of Appeal, Third Appellate District, and was denied on July 24, 2008. Lodg. Docs. 7, 8. Petitioner's third and last state habeas petition was filed on December 24, 2008, in the California Supreme Court, and was denied on November 10, 2009. Lodg. Docs. 9, 10.
The instant petition was filed on December 31, 2009. Dckt. No. 1. On September 24, 2010, respondent moved to dismiss the petition on the ground that it was untimely filed. Dckt. No. 15. In an order issued on August 22, 2011 (hereinafter "Prior Order"), the undersigned found that discovery was necessary to determine whether the petition was timely, and respondent's motion was therefore denied without prejudice. Dckt. No. 29. After completing discovery, respondent filed a renewed motion to dismiss, again arguing that the petition should be dismissed because it was filed outside the one-year statute of limitation. Dckt. No. 36.
II. Statute of Limitations
A one-year limitations period for seeking federal habeas relief begins to run from the latest of the date the judgment became final on direct 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 if the second petition was filed within a "reasonable time" after the denial of the first. Carey v. Saffold, 536 U.S. 214, 223 (2002). Generally, a gap of 30 to 60 days between state petitions is considered a "reasonable time" during which the statute of limitations is tolled, but six months is not reasonable. Evans, 546 U.S. at 210 (using 30 to 60 days as general measurement for reasonableness based on other states' rules governing time to appeal to the state supreme court); Saffold, 536 U.S. at 219 (same); Waldrip v. Hall, 548 F.3d 729, 731 (9th Cir. 2008) (finding that six months between successive filings was not a "reasonable time").
The limitations period may also be equitably tolled where a habeas petitioner establishes two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). In light of this pronouncement in Pace, the Ninth Circuit has reiterated that the threshold necessary to trigger equitable tolling is very high, and clarified that equitable tolling only applies where a petitioner shows that despite diligently pursuing his rights, some external force caused the untimeliness. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner has the burden of showing facts entitling him to statutory and equitable tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002), overruled on other grounds by Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
A. Start Date of the Limitations Period
In this case, the statute of limitations began to run when petitioner's conviction became final on direct review. See 28 U.S.C. § 2244(d)(1)(A). The California Supreme Court denied review on October 25, 2006. Lodg. Doc. 3. Thus, the conviction became "final" within the meaning of section 2244(d)(1)(A) when the time for filing a petition for writ of certiorari expired ninety days later, on January 23, 2007. Supreme Ct. R. 13; Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). The one-year limitations period commenced running the following day. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Thus, petitioner had until January 23, 2008, to file his federal habeas petition. However, he did not file the instant petition until December 31, 2010. Absent tolling, his application in this court is nearly three years late.
Petitioner contends that he is entitled to statutory tolling from January 18, 2008, the date he filed his first state petition, to November 10, 2009, the date the California Supreme Court denied his final state habeas petition. Pet'r's Opp'n to Resp.'s Mot. to Dismiss, Dckt. No. 37 at 10-14.
The parties do not dispute that the petitioner's first habeas petition was properly filed and therefore entitles petitioner to statutory tolling from January 18, 2008 to April 28, 2008. In the Prior Order, the undersigned explained that petitioner is also entitled to statutory tolling during the gap between the denial of the first state petition and the filing of the second petition because petitioner's delay in filing the second petition was not unreasonable:
Here, petitioner filed his first state habeas petition on January 18, 2008, in Tehama County Superior Court. Sixty-five days passed between the denial of that state habeas petition and the filing of the second state habeas petition in the California Court of Appeal. This period is not unreasonable given that after the unsuccessful petition to the Superior Court, petitioner's attorney refined and augmented the claims in his petition to the Court of Appeal. See Lodg. Docs. 5, 7; Warburton v. Walker, 548 F. Supp. 2d 835, 840 (C.D. Cal. 2008) (sixty-nine day delay reasonable because petitioner amended petition before filing in Court of Appeal); Stowers v. Evans, 2006 WL 829140, *3 (E.D. Cal. Mar. 29, 2006) (eighty-seven day delay not unreasonable because second petition was substantially re-written). Sixty-five days is also far less than the six-month period of unexplained delay that the Supreme Court in Chavis found to be unreasonable and is considerably less than the unexplained delays of 101, 115, and 146 days found by the Ninth Circuit to be unreasonable in Chaffer and Banjo. Chavis, 546 U.S. at 201; Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010); Banjo v. Ayers, 614 F.3d 964, 970 (9th Cir. 2010). Furthermore, a mere sixty-five day delay in filing at the next highest state court is not "substantially longer than the 30 to 60 days that most States allow for filing petitions." Chaffer, 592 F.3d at 1048; Reddick v. ...