FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner incarcerated at the Sierra Conservation Center in Jamestown, California, is proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2009 judgment of conviction entered against him in the Shasta County Superior Court. Before the court is respondent's motion to dismiss the pending federal habeas petition on the grounds that: (1) it was untimely filed beyond the applicable one-year statute of limitations; (2) it is a mixed petition because petitioner's claim three, in which he challenges the imposition of a fee assessed against him pursuant to California Government Code § 70373, was not properly exhausted by presentation to the California Supreme Court; and (3) that this court lacks subject matter jurisdiction over claim three of the petition because petitioner fails to satisfy the in-custody requirement of 28 U.S.C. § 2254(a) with respect to that unexhausted claim. Petitioner has filed an opposition*fn1 to the motion and respondent has filed a reply.
On May 22, 2009, following a jury trial, petitioner was convicted in the Shasta County Superior Court for being a registered sex offender who failed to provide notification of a change of address as required by California Penal Code § 290(F)(1)(a). (Lod. Doc. No. 1.) Petitioner was sentenced to an indeterminate term of 25 years to life imprisonment because he had two prior "serious" felony convictions. (Lod. Doc. No. 2.) On October 21, 2010, the California Court of Appeal for the Third Appellate District affirmed the judgment of conviction. (Id.) On December 2, 2010, petitioner filed a petition for review with the California Supreme Court. (Lod. Doc. No. 3.) On January 12, 2011, that petition was summarily denied. (Lod. Doc. No. 4.)
Not until April 10, 2012, did petitioner file a petition for a writ of
habeas corpus with the Shasta County Superior Court.*fn2
(Lod. Doc. No. 5.) On May 7, 2012, that court denied
the petition citing the decision in In re Connor, 16 Cal.2d 701, 705
(1940). (Lod. Doc. No. 6.)*fn3
Petitioner filed no other collateral attacks on his conviction in the state courts. Instead, eight days after the denial of his petition by the Shasta County Superior Court, on May 15, 2012, petitioner filed his federal petition for a writ of habeas corpus with the U.S. District Court for the Northern District of California. (Doc. No. 1.) On June 19, 2012, this federal habeas action was transferred to this court. (Doc. No. 4.)
THE ARGUMENTS OF THE PARTIES
In moving to dismiss this habeas action as untimely, respondent contends that petitioner's judgment of conviction became final on April 12, 2011, ninety-days after the California Supreme Court denied review and his time for the filing a petition for writ of certiorari with the U.S. Supreme Court expired. (Doc. No. 13 at 3.) Respondent argues that the one-year statute of limitations for the filing of a federal habeas petition therefore began to run on April 13, 2011, and absent tolling expired on April 12, 2012. (Id.) Respondent notes that the pending petition was not filed in federal court until May 15, 2012.
According to respondent, petitioner is entitled to 28 days of statutory tolling from April 10, 2012 when his state habeas petition was filed in the Shasta County Superior Court until May 7, 2012 when that petition was denied. (Id.) Respondent argues that on May 7, 2012 the statute of limitations for the filing of a federal petition began to run again and expired on May 10, 2012. (Id.) Therefore, respondent contends, the federal habeas petition pending before this court is time-barred under 28 U.S.C. § 2244(d) because it was not filed until May 15, 2012, five days after the statute of limitations for doing so had expired. (Id.)
In opposition to the motion to dismiss, petitioner merely asserts that he is entitled to the benefit of the mailbox rule with respect to the date of his filings and that he erroneously filed his federal habeas petition in the wrong U.S. District Court. (Doc. No. 18 at 1-2.) Petitioner does not specifically contend that he is entitled to either statutory or equitable tolling of the applicable statute of limitations. However, he does suggest that respondent's contention that his federal habeas petition was filed five days late is a minor matter that should not prevent the court from addressing the merits of that petition. (Id. at 2-3.)
In reply, respondent reiterates that petitioner's federal habeas application was filed five days after the AEDPA statute of limitations had expired. (Doc. No. 19 at 2.) Respondent points out that the calculation embodied in the motion to dismiss applies the mailbox rule in petitioner's favor and does not contest petitioner's position with respect to date his judgment became final or when his petitions were filed. (Id.) It is respondent's position that applying all of the dates asserted by plaintiff himself, his federal habeas petition was filed five days too late.
Petitioner filed his federal habeas petition after April 24, 1996, therefore, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to the petition. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). The AEDPA imposes a one-year statute of limitations on the filing of federal habeas petitions. More specifically, 28 U.S.C. § 2244(d) states as follows:
(d) (1) 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 ...