The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
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. Before the court is respondent's motion to dismiss the pending habeas petition as barred by the statute of limitations. For the reasons set forth below, respondent's motion should be granted.
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).
For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:
1. On November 16, 2006, petitioner was convicted in Sacramento County Superior Court of: six counts of forgery; five counts of receiving stolen property; four counts of various firearm offenses; two counts of unauthorized use of personal identification; possession of forged identification; possession of a controlled substance; possession of ammunition by a felon; and one count each of burglary and possession of a counterfeit apparatus. A sentencing enhancement was found true. Petitioner was sentenced to a determinate sentence of twenty-one years and four months in state prison. (Respondent's Lodged Document ("LD") 1.)
2. Petitioner filed an appeal. On October 9, 2008, the California Court of Appeal, Third Appellate District, directed the trial court to stay the sentence imposed on two of his three convictions on counts twenty-three, twenty-four, and twenty-six; stay the sentence imposed on count eight; and strike two of the receiving stolen property convictions, and remanded the matter for re-sentencing. (LD 2.)
3. Petitioner did not seek review in the California Supreme Court.
4. On January 21, 2009, the trial court reversed the conviction for counts six and seven, and stayed the sentence imposed on counts twenty-four and twenty-six, and amended the abstract accordingly. (LD 3.)
5. The original abstract of judgment and the amended abstract of
judgment do not reflect a conviction for count eight.*fn1
(LD 1, 3.)
6. Petitioner did not appeal the re-sentencing.
7. On August 15, 2011,*fn2 petitioner filed a pro se petition for writ of habeas corpus in the California Supreme Court. (LD 4.) On January 11, 2012, the California Supreme Court denied the petition. (LD 5.)
8. No other state post conviction collateral challenge was filed by petitioner.
9. On February 27, 2012, pursuant to Rule 3(d) of the Federal Rules Governing Section 2254 Cases, this instant action was constructively filed. (Dkt. No. 1 at 54.)
Thus, petitioner's conviction became final sixty days after the January 21, 2009 entry of amended judgment by the trial court, i.e. on March 22, 2009. See Cal. Rule of Court
8.308(a) (former Rule 30.1). The statue of limitations began running the following day, i.e. on March 23, 2009. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year from that date to file a timely federal habeas corpus petition, i.e. until March 23, 2010. But petitioner did not file his federal habeas petition until February 27, 2012, over twenty-three months later. Thus, petitioner's federal petition for writ of habeas corpus is time-barred unless he is entitled to the benefit of tolling.
Petitioner filed his first state court petition for writ of habeas corpus on August 15, 2011, after the statute of limitations period expired. The filing of a state habeas petition after the limitations period expired cannot revive the statute of limitations, and has no tolling effect. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (where petitioner filed his state post-conviction relief petition after AEDPA statute of limitations period expired, delay results in absolute time bar.) Therefore, petitioner's collateral challenge cannot toll the limitations period because it was filed after the limitations period expired.
Petitioner contends he is entitled to equitable tolling on the ...