The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. He challenges 1996 convictions for several offenses including kidnaping and rape. Respondent has filed a motion asking that this matter be dismissed as time-barred. Petitioner has filed a motion for leave to conduct discovery.
The limitations period applicable to this action may be found at 28 U.S.C. § 2244(d)(1). That statute provides as follows:
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.
The limitations period applicable to this action began to run under § 2244(d)(1)(A) on January 14, 1998;*fn1 the day after time expired for petitioner to file a petition for writ of certiorari in the United State Supreme Court concerning the direct review of his convictions and sentences. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) ("We hold that the period of 'direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition."). This action was commenced by petitioner on August 19, 2012*fn2 and there does not appear to be any statutory basis for tolling the limitations period. Therefore, unless there is a basis for equitable tolling, this action is time-barred.
The statute of limitations may be subject to equitable tolling if a petitioner can demonstrate that (1) he had been pursuing his rights diligently, and (2) some extraordinary circumstance prevented him from filing on time. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Petitioner must show that the "extraordinary circumstance" was the cause of the untimeliness, seeSpitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003), and that the "extraordinary circumstance" was beyond his control. Shannon v. Newland, 410 F.3d 1083, 1089-90 (9th Cir. 2005). "[T]he threshold necessary to trigger equitable tolling . . . is very high, lest the exception swallow the rule." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002).
Petitioner asserts he is entitled to equitable tolling because: 1) the California Department of Corrections and Rehabilitation either lost or destroyed his trial transcripts and some of his personal property; and 2) he suffers from severe depression which contributed to petitioner's "lapse in self-preservation and the ability to act as his own counsel." Opp'n at 3. With respect to number 1, petitioner fails to indicate how long he was without his transcripts, what other personal property was taken and why the confiscation of his property caused him to be 13 years late. With respect to 2, petitioner does not explain how depression caused him to file late.
Finally, petitioner asserts the court should excuse the fact that he has filed outside the applicable limitations period because he is "actually innocent." An otherwise time-barred habeas petitioner may proceed with his habeas claims if he can show that, in light of new and reliable evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011). In order to determine if the habeas petitioner has met the "actually innocent" standard described above, the court considers the new evidence presented in conjunction with the evidence which was presented at trial. Id. In the Ninth Circuit, "new" evidence is simply evidence which was not presented at trial. Griffin v. Johnson, 350 F.3d 956, 962 (9th Cir. 2003).
The court will waive the applicable limitations period and hear a habeas petitioner's claims under the "actual innocence" exception only in the extraordinary case. ...