REPORT AND RECOMMENDATION RECOMMENDING GRANTING OF RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY FILED [Doc. No. 24]
JAN M. ADLER, Magistrate Judge.
Presently before the Court is a Motion to Dismiss Petition for Writ of Habeas Corpus As Untimely Filed submitted by Respondent Kathy Allison (hereafter "Respondent"). [Doc. No. 24] For the reasons set forth below, the Court recommends that District Judge Larry Alan Burns grant Respon-dent's Motion to Dismiss.
II. FACTUAL AND PROCEDURAL SUMMARY
On February 9, 2007, Petitioner was convicted of robbery and murder in San Diego County Superior Court. (Cal. Penal Code §§ 87(a), 211, 212.5.) Petitioner received a sentence of 128 years in prison, including a sentence of life in prison without parole for counts one and two, and a consecutive 28 year sentence enhancement for felony murder. [Doc. No. 6, at 1]
Petitioner appealed his conviction and sentence to the California Court of Appeal, alleging: (1) he was not afforded his constitutional right to a representative and impartial jury; (2) the evidence was not sufficient to justify the robbery special circumstance penalty; (3) the special circumstance should be overturned due to prosecutorial misconduct; (4) the trial court erred by allowing the jury to consider evidence of an unrelated shooting; and (5) the trial court erred by admitting an outdated photo of the victim's son into evidence. [Lodgment No. 2] The California Court of Appeal affirmed the San Diego County Superior Court's judgment. [Lodgment No. 5]
Petitioner then appealed his case to the California Supreme Court, raising, in addition to the claims he raised in the Court of Appeal, the following claims: (6) the prosecutor misstated the law of special circumstances; (7) the trial court erred by allowing the jury to consider evidence of unrelated bullet holes in Petitioner's truck; and (8) the trial court erred by not conducting individual interviews of the jurors to determine whether they had knowledge of materials not in evidence. [Lodgment No. 6] The California Supreme Court denied the petition for review on June 9, 2010. [Lodgment No. 8]
Petitioner initiated this federal habeas action on October 7, 2011. [Doc. No. 1] On September 13, 2012, Petitioner filed the Second Amended Petition, which is the operative habeas petition, alleging two claims: (1) the evidence was not sufficient to support the robbery special circumstance penalty; and (2) he was not afforded his constitutional right to a representative and impartial jury. [Doc. No. 19, at 2]
On November 7, 2012, Respondent filed a Motion to Dismiss the Petition for Writ of Habeas Corpus, alleging the Petition was untimely filed. [Doc. No. 24] Petitioner subsequently filed an opposition brief on January 3, 2013. [Doc. No. 30]
III. STATUTE OF LIMITATIONS
Petitioner's claims are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (hereafter "AEDPA") which provides a one-year statute of limitations period for prisoners to file petitions for writs of habeas corpus. 28 U.S.C. § 2244(d). In the present case, the statute of limitations period for Petitioner's claims began to run when his judgment of conviction "became final by conclusion of direct review or the expiration of such time seeking such review." See 28 U.S.C. § 2244(d)(1)(A). Thus, the judgment became final on September 7, 2010 - 90 days after the California Supreme Court denied his petition for review. [Lodgment No. 8]; See Bowen v. Roe, 188 F.3d 1157, 1159-60 (9th Cir. 1999). Accordingly, the statute of limitations period began the following day, September 8, 2010, and, absent tolling, ended one year later, on September 8, 2011.
Petitioner, however, did not file his Petition for Writ of Habeas Corpus until October 7, 2011. [Doc. No. 1] Therefore, unless he can show he is entitled to tolling, pursuant to 28 USC § 2244(d)(2), his claims are time-barred.
IV. STATUTORY TOLLING
Under AEDPA, the one-year statute of limitations period is tolled for the "time during which a properly filed application for State post-conviction or other collateral review... is pending." 28 U.S.C. § 2244(d)(2). Additionally, "[a]n application for post-conviction review is pending while a California petitioner completes a full round of state collateral review, including during the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law." Waldrip v. Hall, 548 F.3d 729, 724 (9th Cir. 2008) (citations and internal quotations omitted, emphasis in original). Under California law, "[a]s long as the prisoner filed a petition for appellate review within a reasonable time, ' he could count as pending' (and add to the 1-year time limit) the days between (1) ...