ORDER DENYING RESPONDENT'S UPDATED MOTION TO DISMISS CLAIMS BASED ON STATUTE OF LIMITATIONS
D. LOWELL JENSEN, District Judge.
Petitioner's habeas petition challenging his state conviction and sentence is pending before the court. Respondent has filed a motion seeking dismissal of numerous claims based on the statute of limitations established by the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Petitioner contends that he is entitled to tolling of the limitations period. Pursuant to Civil Local Rules 7-1(b) and 7-6, the court finds that petitioner's motion is appropriate for submission on the papers without oral argument. For the reasons stated below, the court denies respondent's motion.
In 1982, petitioner was convicted in Santa Clara County Superior Court of murdering Edward Dukor in Dukor's jewelry store in a shopping center in Milpitas, California. The jury found the special circumstance that he committed the murder in the course of robbery to be true and fixed the penalty at death. People v. Johnson , 47 Cal.3d 1194, 1212 (1989). The California Supreme Court affirmed the conviction and sentence on February 23, 1989. The United States Supreme Court denied petitioner's petition for writ of certiorari on March 19, 1990.
Acting in pro per, petitioner filed in this court on November 9, 1990, a request for a stay of execution and appointment of counsel. The court stayed the execution and referred the matter for appointment of counsel. On January 31, 1991, the court appointed the California Appellate Project ("CAP") to represent petitioner. On October 6, 1992, CAP filed a motion to withdraw from petitioner's case. The court granted this motion on January 12, 1993, and appointed attorneys Alexander Brainerd, Kenneth Keller and David Eiseman from the law firm of Bronson, Bronson & McKinnnon to represent petitioner. On March 14, 1997, Alexander Brainerd and David Eiseman resigned from the Bronson firm and joined the law firm of Quinn Emanuel Urquhart Oliver & Hedges, LLP. David Eiseman remained as appointed counsel, while Alexander Brainerd and Kenneth Keller withdrew from representation and were replaced by Carlyn Clause of the Bronson firm. Carlyn Clause subsequently withdrew from the case.
Pursuant to the court's instructions, on April 23, 1997, petitioner filed a federal habeas petition containing only exhausted claims, a notice regarding the existence of non-exhausted claims and a motion to hold proceedings in abeyance pending the exhaustion of non-exhausted claims. On October 6, 1997, the court granted petitioner's abeyance motion and directed him to exhaust all unexhausted claims once they were identified by the court. On November 6, 2002, petitioner filed an exhaustion petition in state court. The California Supreme Court denied this petition on the merits and on procedural grounds, in a two-page order on October 29, 2003. In re Willie Branner, Cal. Supr. Ct. No. SO92757 (Oct. 29, 2003).
Pursuant to the court's instructions, petitioner filed an amended federal habeas petition containing his newly-exhausted claims in this court on December 19, 2003. After litigating issues of procedural default and other procedural bars, respondent subsequently filed the instant motion to dismiss. Briefing on the matter was completed on December 28, 2010.
Respondent argues that although petitioner's original federal habeas petition, filed on April 23, 1997, was timely, claims contained in his amended petition, filed on December 19, 2003, are time-barred. He contends that these claims do not relate back to any claim asserted in the original petition. Respondent further requests that the court vacate, nunc pro tunc, its 1997 order granting petitioner a stay on the grounds that petitioner has engaged in dilatory practices that render the stay inappropriate. Petitioner counters that he is entitled to equitable and statutory tolling of the limitations period. He also contends that claims in his amended petition relate back to claims in his original petition, but reserves briefing on the matter, should it be necessary, for a later date.
The AEDPA imposes a one-year limitations period for the filing of a federal habeas petition. 28 U.S.C. § 2244(d)(1). The statute provides, in pertinent part, that the limitations period runs from the latest of 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). "Direct review" includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. Bowen v. Roe , 188 F.3d 1157, 1159 (9th Cir. 1999). The time during which a properly filed application for state post-conviction or other collateral review is pending shall not be counted toward the limitation period. 28 U.S.C. § 2244(d)(1)(2).
The Supreme Court of the United States recently held that the timeliness provision in the federal habeas corpus statute is subject to equitable tolling. Holland v. Florida , 130 S.Ct. 2549, 2560 (2010). A federal habeas 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 (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005)). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty , 187 F.3d 1104, 1107 (9th Cir. 1999). The extraordinary circumstances must be the cause of the untimeliness. Spitsyn v. Moore , 345 F.3d 796, 799 (9th Cir. 2003).
Here, petitioner's direct appeal was denied on February 23, 1989. The United States Supreme Court denied petitioner's petition for writ of certiorari on March 19, 1990, rendering his conviction final. Because petitioner's conviction was final on direct appeal prior to the enactment of the AEDPA, his limitations period began to run on April 23, 1996, and expired on April 24, 1997. See Patterson v. Stewart , 251 F.3d 1243, 1246 (9th Cir. 2001). Absent tolling or a finding of relation-back, petitioner's amended petition, filed on December 19, 2003, is therefore untimely.
Petitioner's request for tolling is largely occasioned by the interplay between three legal principles: the "total exhaustion requirement" of Rose v. Lundy , 455 U.S. 509, 522 (1982), the AEDPA's statute of limitations and the "relation back" standard articulated in Mayle v. Felix , 545 U.S. 644, 656 (2005). Under Rose, petitioners were required to fully exhaust their claims in state court before seeking federal habeas relief. "Rose required district courts to dismiss a "mixed" petition, leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the ...