The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding in pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's June 28, 2012, motion to dismiss on the grounds that this action is barred by the statute of limitations. Petitioner has filed an opposition based on equitable tolling, to which respondent has filed a reply. After ordering and reviewing further briefing, the court now issues the following findings and recommendations.
The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(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 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.
Petitioner was convicted of making terrorist threats, unlawful discharge of a firearm, and forced oral copulation. (Rsp. Lod. Doc. 1.) On November 18, 2004, petitioner was sentenced to an indeterminate prison term of fifteen years to life. Id. Petitioner filed a direct appeal which was denied by the Third District Court of Appeal on January 26, 2007 (Rsp. Lod. Doc. 2), the first habeas petition was filed in Sacramento County Superior Court on July 22, 2011 (Rsp. Lod. Doc. 3) and denied on September 8, 2011 (Rsp. Lod. Doc. 4), based on untimeliness, citing, inter alia In re Robbins,18 Cal.4th 770, 811-812, 812 fn. 32 (1998); In re Clark, 5 Cal. 4th 750, 774-775 (1993). The second petition was filedin the Third District Court of Appeal on October 1, 2011 (Rsp. Lod. Doc. 5) and denied in a postcard denial on October 20, 2011 (Rsp. Lod. Doc. 6). Id. The third and final state court habeas petition was filed in the California Supreme Court on November 14, 2011 (Rsp. Lod. Doc. 7) and received a postcard denial on March 21, 2012 ( Rsp. Lod. Doc. 8). Id. There is no dispute that petitioner's conviction became final for AEDPA purposes on March 7, 2007. Petitioner had one year, that is, until March 7, 2008, to file a timely federal petition, absent applicable tolling. The instant action, filed April 16, 2012,*fn1 is not timely unless petitioner is entitled to statutory or equitable tolling.
Petitioner filed his first state habeas petition on July 22, 2011, over three years after the expiration of the statute of limitations on March 7, 2008. After denial of his first state petition in the Superior Court, pursuant to In re Robbins and In re Clark, petitioner filed two additional habeas petitions, the last of which was denied by the state Supreme Court in a summary order filed March 21, 2012.
Petitioner is not entitled to statutory tolling for the time when his state court petitions were pending, because a state court habeas petition filed beyond the expiration of AEDPA's statute of limitations does not toll or revive the limitations period under section 2244(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Additionally, the petitions were not properly filed, as the Superior Court, in the only reasoned decision made by the state courts, ...