The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
On April 23, 2012, David Matlock ("Petitioner"), a California state prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus ("Petition") pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his conviction. (Doc. No. 1.) On May 16, 2012, Timothy Busby, who has since been replaced by Matthew Cate as Respondent (collectively "Respondent"), filed a motion to dismiss on grounds that the petition is time-barred by the one-year statute of limitations set out in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d), and because Petitioner's claims are procedurally defaulted. (Doc. Nos. 5, 8.) On July 16, 2012, Petitioner filed an opposition to the motion. (Doc. No. 12.) On October 15, 2012, the magistrate judge issued a Report and Recommendation to grant Respondent's motion to dismiss and to dismiss the Petition with prejudice. (Doc. No. 19.) Petitioner has not filed an objection to the magistrate judge's report to date. For the following reasons, the Court grants Respondent's motion to dismiss and dismisses the Petition with prejudice.
On November 10, 2005, a San Diego jury convicted Petitioner of second degree murder, for which he was sentenced to a term of 15 years. (Lodgment No. 1, App. A at 1-2.) Additionally, the jury found that he personally used and discharged a firearm to cause death, leading to an enhanced sentence totaling 40 years to life. (Lodgment No. 1, App. A at 1-2.) At trial, Petitioner testified. (Lodgment No. 2, App. A at 4-5.) He admitted to the shooting, but claimed self-defense, and imperfect self-defense. (Lodgment No. 2, App. A at 4-5.) In addition, Dr. Christina Stanley testified that her autopsy revealed that the victim was shot eight times, mostly in the back. (Lodgment No. 2, App. A at 4.) Petitioner appealed his conviction, and the California Court of Appeals affirmed the trial court on September 7, 2007. (Lodgment No. 1, App. A.) On October 1, 2007, Petitioner filed a petition for review in the California Supreme Court, which was denied on November 28, 2007. (Lodgment No. 2.) Petitioner subsequently filed for writ of certiorari with the U.S. Supreme Court on January 23, 2008; the Supreme Court denied the petition for certiorari on March 24, 2008. (Doc. No. 1-3 at 47.)
On October 14, 2011, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court. (Lodgment No. 3.) The California Supreme Court denied the petition on March 28, 2012, on the grounds that the Petitioner failed to meet California's procedural requirement of timeliness. (Lodgment No. 4.)
On April 23, 2012, Petitioner filed his federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On May 16, 2012, Respondent filed a motion to dismiss, arguing that Petitioner's claims are time-barred by the AEDPA's one-year limitations period, 28 U.S.C. § 2244(d), and further are procedurally defaulted. (Doc Nos. 5, 8.) In response, Petitioner contends that he is entitled to equitable tolling, bringing his Petition into conformance with the AEDPA's statute of limitations. (Doc. No. 12 at 7.) He additionally asserts that his innocence of the crime for which he has been convicted excuses him from both the AEDPA's time-bar and California's procedural requirements. (Doc. No. 12 at 7.)
I. Petition is Barred by the AEDPA's Statute of Limitations
The AEDPA, 28 U.S.C. § 2244(d), imposes a one-year limitations period to applications for a writ of habeas corpus by prisoners challenging a State court conviction. Under section 2244(d)(1)(A), the limitations period begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." The Ninth Circuit explains that "final" means "a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987)).
The one-year limitations period can be tolled statutorily under section 2244(a)(2) of the AEDPA, or equitably if the petitioner shows both that he was pursuing his rights diligently and that extraordinary circumstances beyond his control prevented him from complying with the statute of limitations. Velasquez v. Kirkland, 639 F.3d 964, 966-67, 969 (9th Cir. 2011). Additionally, a habeas corpus petitioner may be excused from the limitations period if he can support a claim of actual innocence. Schulp v. Delo, 513 U.S. 298 (1995).
Petitioner does not dispute the application of § 2244(d)(1)(A) to his claims. (Doc. No. 12.) When the U.S. Supreme Court denied review of Petitioner's claims on March 24, 2008, Petitioner had at that point exhausted all available appellate remedies, and the judgment became final for purposes of the statute of limitations. United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987)). Thus, absent tolling, Petitioner's federal habeas petition, filed on April 23, 2012, over four years after final judgment, would be time-barred under the AEDPA's statute of limitations.
B. Petitioner Not Entitled to Statutory Tolling
Under 28 U.S.C. § 2244(d)(2), the AEDPA's limitations period is tolled during the period when a "properly filed application for State post-conviction or other collateral review" is pending. To toll the statute of limitations under § 2244(d)(2), a petition for post-conviction or other collateral review must be filed within the AEDPA's one-year limitations period, see Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), and must be timely filed under state law, see Allen v. Siebert, 552 U.S. 3, 7 (2007). Petitioner filed a petition for writ of habeas corpus with the California Supreme Court on October 14, 2011. (Doc. No. 1.) At that time, the AEDPA's one-year limitations period had already expired. Furthermore, in rejecting the state habeas petition, the California Supreme Court found that Petitioner failed to meet California's procedural requirement of timeliness. ...