FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition as untimely. Dckt. No. 27. For the following reasons, the motion should be granted.
Petitioner was convicted of two counts of first degree murder. Documents Lodged ISO Resp.'s Mot. to Dismiss (hereinafter "Lodg. Doc."), 1. He appealed and on September 25, 1990, the California Court of Appeals, Third Appellate District, affirmed. Lodg. Doc. 2. Petitioner did not seek review in the California Supreme Court.
Petitioner subsequently filed six state habeas petitions. His first
petition was filed in the Glenn County Superior Court on March 27,
1997, and was denied May 5, 1997.*fn1 Lodg. Doc. 3. On
March 28, 1997, petitioner filed a second habeas petition in the
California Supreme Court, which was denied on May 28, 1997.*fn2
Lodg. Docs. 4, 5. On September 16, 1997, petitioner filed a
third habeas petition in the California Court of Appeal, Third
Appellate District. Lodg. Doc. 6. That petition was denied on
September 25, 1997. Lodg. Doc. 7. A fourth habeas petition was filed
in the California Supreme Court on October 7, 1997. Lodg. Doc. 8. That
petition was denied on January 28, 1998. Lodg. Doc. 9.
On February 28, 2010, nearly 12 years after the denial of his last state petition, petitioner filed another habeas petition in the California Court of Appeal. Lodg. Doc. 10. That petition was denied on March 11, 2010. Petitioner's sixth state habeas petition, filed March 30, 2010, was denied by the California Supreme Court on October 13, 2010. Lodg. Docs. 12, 13.
Petitioner filed this federal petition on November 28, 2010. Dckt. No. 1.
II. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to all petitions for writ of habeas corpus filed after its enactment. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). It imposes a one-year limitations period for seeking federal habeas relief that 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, 544 U.S. at 418 (2005); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
A. Start Date of the Limitations Period
Petitioner's conviction became final prior to the April 24, 1996 enactment of AEDPA. He was sentenced on March 27, 1989. Lodg. Doc. 1. His sentence was affirmed by the California Court of Appeal on September 25, 1990. Lodg. Doc. 2. Petitioner did not seek review in the California Supreme Court. His conviction became final within the meaning of section 2244(d)(1)(A) when the time for filing a petition for review expired on November 4, 1990, forty days after the California Court of ...