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. Presently before the court are respondent's motion to dismiss this action as untimely and petitioner's motion for appointment of counsel. Dckt. Nos. 11, 15. For the following reasons, respondent's motion to dismiss is granted and petitioner's request for appointment of counsel is denied.
Petitioner pled guilty to second degree robbery and was sentenced to 6 years in state prison. Resp.'s Mot. to Dismiss, Docs. Lodged In Support Thereof (hereinafter "Lodg. Doc.") 1.
He failed to timely appeal the conviction. He did, however, request permission to file an untimely notice of appeal, which the California Court of Appeal, Third Appellate District, denied on February 5, 2009. Lodg. Docs. 2, 3.
Petitioner subsequently filed three state habeas petitions. The first was filed in the San Joaquin County Superior Court on April 12, 2011.*fn1 Lodg. Doc. 4. That petition was denied on May 4, 2011. Lodg. Doc. 5. On June 5, 2011, petitioner filed a petition in the California Court of Appeal, which was denied on June 23, 2011. Lodg. Docs. 6, 7. Petitioner last state habeas petition was filed in the California Supreme Court on July 10, 2011. That petition was denied on February 22, 2012. The instant petition was filed on March 20, 2012.
B. 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. 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).
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, 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).