United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. On March 26, 2013, respondent filed a motion to dismiss on the grounds that the petition is untimely. ECF No. 11. For the reasons that follow, the undersigned recommends that the motion be granted in part and denied in part.
I. The Petition
On January 28, 1983, petitioner pleaded guilty to various charges, including attempted robbery and kidnapping with the intent to commit robbery. ECF No. 1 at 1. He received a sentence of seven years to life in prison. Id. The judgment was affirmed on direct appeal, and petitioner did not seek review by the California Supreme Court. Id. at 2. Petitioner avers that he was not mentally stable prior to 1995, but that, since then, he has "been doing everything possible to present the fact and circumstances of this case" to a court. Id. at 72. According to respondent, petitioner has filed a number of state habeas petitions, beginning in December 1999. ECF No. 11 at 3.
II. The Limitations Period
Under the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), a one-year limitations period for seeking federal habeas relief begins to run from the latest of: (1) the date the judgment became final on direct review (or April 25, 1996, if the judgment became final prior to AEDPA's enactment), (2) the date on which a state-created impediment to filing is removed, (3) the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review, or (4) the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D); Malcom v. Payne, 281 F.3d 951, 955 (9th Cir. 2002).
A. Statutory Tolling
No statute tolls the limitations period "from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed...." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). However, if a petitioner properly files a state post-conviction application prior to the expiration of the limitations period, the period is tolled, and remains tolled for the entire time that application is "pending." 28 U.S.C. § 2244(d)(2). "[A]n application is properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post-conviction application is "pending" during the intervals between a lower court decision and the filing of a new petition in a higher court that elaborates on the claims raised in the lower-court petition (rather than raises different claims). Stancle v. Clay, 692 F.3d 948, 953 (9th Cir. 2012); Carey v. Saffold, 536 U.S. 214, 223 (2002). A federal habeas application does not provide a basis for statutory tolling. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). Nor does a state petition filed after the federal limitations period has expired. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
B. Equitable Tolling and the Equitable Exception for Innocence
The limitations period may also be equitably tolled where a habeas petitioner establishes two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2554, 2562 (2010). Petitioner has the burden of showing facts entitling him to equitable tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). The threshold necessary to trigger equitable tolling is very high, "lest the exceptions swallow the rule." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Equitable tolling may be applied only where a petitioner shows that some external force caused the untimeliness. Id.
In addition, the statute of limitations is subject to an actual innocence exception. A petitioner may have his untimely case heard on the merits if he can persuade the district court that it is more likely than not that no reasonable juror would have convicted him. McQuiggin v. Perkins, __ U.S. __, 133 S.Ct. 1924, 1928, 1933 (2013); Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc). "Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing." McQuiggin, 133 S.Ct. at 1935. For example, the "court may consider how the timing of the submission and the likely credibility of a petitioner's affiants bear on the probable reliability" of his evidence of innocence. Id.
The petition raises a number of claims:
(1) That petitioner's trial counsel rendered ineffective assistance by advising petitioner, who was not mentally competent, to plead guilty (ECF No. 1 at 17) and to accept a ...