ORDER GRANTING RESPONDENT'S MOTION TO DISMISS; DENYING CERTIFICATE OF APPEALABILITY
RONALD M. WHYTE, District Judge.
Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence imposed by the Superior Court of Contra Costa County. The court issued an order to show cause. In lieu of an answer, respondent has filed a motion to dismiss the petition as untimely and unexhausted. Although given an opportunity, petitioner has not filed an opposition. For the reasons stated below, the court GRANTS respondent's motion to dismiss the petition as untimely.
In 2009, petitioner was convicted of two counts of lewd and lascivious conduct with a child under the age of fourteen. (Resp. Ex. A at 32.) Petitioner was sentenced to a term of eight years. (Id.) On June 25, 2010, the California Court of Appeal affirmed. (Id.) On September 15, 2010, the California Supreme Court denied review. (Id. at 2.)
On November 22, 2011, petitioner signed and filed a petition for writ of habeas corpus in Order Granting Respondent's Motion to Dismiss; Denying Certificate of Appealability the California Supreme Court. (Resp. Ex. B.) On March 21, 2012, the California Supreme Court denied the petition. (Id.)
On November 30, 2011, petitioner filed a petition for writ of habeas corpus in federal court in Bonella v. Stainer, No. 11-5738 RMW. On June 5, 2012, the court dismissed the action for failing to pay the filing fee, and failing to state a claim for which relief could be granted.
On May 21, 2012, petitioner filed the instant petition. See Houston v. Lack , 487 U.S. 266, 275-76 (1988).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became law on April 24, 1996, and imposed for the first time 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 of the 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. 28 U.S.C. § 2244(d)(1). Time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year time limit. 28 U.S.C. § 2244(d)(2).
The one-year period generally will run from "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). If a petitioner could have sought review by the state court of appeals or the state supreme court, but did not, the limitation period will begin running against him the day after the date on which the time to seek such review expired. Gonzalez v. Thaler , 132 S.Ct. 641, 653-654 (2012). Here, petitioner's conviction became final on December 14, 2010 - 90 days after the California Supreme Court denied direct review, when the time for filing a petition for writ of certiorari expired. See Miranda v. Castro , 292 F.3d 1063, 1065 (9th Cir. 2002) (where Order Granting Respondent's Motion to Dismiss; Denying Certificate of Appealability petitioner did not file petition for certiorari, his conviction became final 90 days after the California Supreme Court denied review). Thus, petitioner had until December 14, 2011, to file his federal habeas petition. See Patterson v. Stewart , 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner's federal petition, filed on May 21, 2012, therefore, is untimely unless he is entitled to statutory or equitable tolling.
The one-year statute of limitations is tolled under § 2244(d)(2) for the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). Here, petitioner is entitled to tolling from the date he filed his state habeas petition - November 22, 2011 - until the date the California Supreme Court denied the petition - March 21, 2012. At that point, petitioner had 22 days left in his statute of limitations, and needed to file his federal petition by April 12, 2012. Petitioner's underlying petition, filed on May 21, 2012, is 39 days late.
Respondent points out that petitioner's earlier federal habeas petition would not have stopped or tolled the tolling period because an application for federal habeas corpus review is not an "application for State post-conviction or other collateral review" within the meaning of § 2244(d)(2). Duncan v. Walker , 533 U.S. 167, 180-81 (2001). Thus, the running of the limitation period is not statutorily tolled for the period during which a petition is pending in federal court. Id. at 181.
Petitioner also does not demonstrate that he is entitled to equitable tolling. The Supreme Court has determined that Section 2244(d) is subject to equitable tolling in appropriate cases. Holland v. Florida , 130 S.Ct. 2549, 2560 (2010). "[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. at 2562 (internal quotation marks omitted). Once a petitioner is notified that his petition is subject to dismissal based on AEDPA's statute of limitations and the record indicates that the petition falls outside the one-year time period, the petitioner bears the burden of demonstrating that the limitation period was sufficiently tolled under statutory or equitable principles. See Smith v. Duncan , 297 F.3d 809, 814 (9th Cir. 2002).
Here, petitioner was given notice that the petition was subject to dismissal, and was provided an opportunity to respond. However, petitioner has failed to present any argument as to what or how extraordinary circumstances stood in his way and prevented timely filing. ...