ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION AS UNTIMELY AND DENYING A CERTIFICATE OF APPEALABILITY (Docket No. 8)
YVONNE GONZALEZ ROGERS, District Judge.
Petitioner William Harris, a state prisoner, filed a pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court is Respondent's motion to dismiss ("MTD") the instant petition as untimely under 28 U.S.C. § 2244(d) - the statute of limitations set by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner opposes the motion and Respondent has filed a reply.
Having considered all of the papers filed by the parties, the Court GRANTS Respondent's motion to dismiss the petition as untimely.
On November 1, 2006, by a jury in the Santa Clara County Superior Court, Petitioner was convicted of three counts of lewd and lascivious acts on a child under fourteen in violation of California Penal Code § 288(b), one count of sexual penetration of a child under fourteen and more than ten years younger than the defendant in violation of California Penal Code § 289(j), and one count of aggravated sexual assault of a child under fourteen and more than seven years younger than the defendant in violation of California Penal Code § 269. (MTD, Ex. 3 at 2.) The state superior court sentenced Petitioner to twenty-seven years to life in state prison. ( Id. ) Petitioner appealed his conviction, and the California Court of Appeal affirmed the judgment on May 20, 2008. ( Id., Ex. 1.) The California Supreme Court denied review on July 30, 2008. ( Id., Ex. 2.)
On October 27, 2011, Petitioner filed a petition for writ of habeas corpus in the Santa Clara County Superior Court, which denied the petition on November 17, 2011. ( Id., Exs. 3 and 4.) On November 30, 2011, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, which was denied on December 7, 2011. ( Id., Exs. 5 and 6). On January 12, 2012, Petitioner filed a petitioner for a writ of habeas corpus in the California Supreme Court, which was denied on May 16, 2012, with a citation to In re Robbins, 18 Cal.4th 770, 780 (1998). ( Id., Exs. 7 and 8).
On October 2, 2012, Petitioner filed the instant federal petition.
On April 16, 2013, Respondent filed his motion to dismiss the petition for writ of habeas corpus as untimely. (Docket No. 8.)
AEDPA, which became law on April 24, 1996, imposed a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1).
The one-year period generally runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review" 28 U.S.C. § 2244(d)(1)(A); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). When a petitioner does not seek a writ of certiorari from the United States Supreme Court, AEDPA's one-year limitations period begins to run on the date the ninety-day period for filing the writ expires. Id.
In the present case where Petitioner did not seek a writ of certiorari from the United States Supreme Court, the limitations period started running on October 28, 2008, ninety days after July 30, 2008, the date the California Supreme Court denied review on direct appeal. See Miranda, 292 F.3d at 1065. Thus, Petitioner had one year from the time the limitations period started running - or until October 28, 2009 - to file his federal habeas petition. Because Petitioner did not file the present petition until October 2, 2012 - approximately three years ...