United States District Court, N.D. California
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. Petitioner has filed an opposition, and respondent has filed a reply. For the reasons stated below, the court GRANTS respondent's motion to dismiss the petition as untimely.
On March 24, 2006, petitioner was sentenced to a term of 24 years in state prison after being convicted of seven counts of committing a lewd or lascivious act on a child under the age of 14 years. (MTD at 2, Ex. 1.) On September 28, 2007, the California Court of Appeal affirmed (id., Ex. 2), and on December 12, 2007, the California Supreme Court denied review (id., Ex. 3.).
On December 21, 2010, petitioner filed a state habeas petition in superior court. (MTD at 2.) On February 16, 2011, the superior court denied it. ( Id., Pet. at 63-65.) On March 2, 2011, petitioner filed a state habeas petition in the California Court of Appeal, which was denied on March 10, 2011. (MTD, Ex. 4; Pet. at 67.) On April 22, 2011, petitioner filed a state habeas petition in the California Supreme Court, which was denied on September 28, 2011. (MTD, Ex. 5; Pet. at 69.)
On November 19, 2012, petitioner filed the underlying federal petition.
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).
"Direct review" includes the period within which a petitioner can file a petition for 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). Accordingly, if a petitioner fails to seek a writ of certiorari from the United States Supreme Court, the AEDPA's one-year limitations period begins to run on the date the ninety-day period defined by Supreme Court Rule 13 expires. See Miranda v. Castro , 292 F.3d 1063, 1065 (9th Cir. 2002).
Here, petitioner's conviction became final on March 11, 2008, ninety days after the California Supreme Court denied his petition for review. See id. Thus, pursuant to 28 U.S.C. § 2244(d)(1)(A), AEDPA's one-year limitation period began to run the following day, and expired one year later, on March 11, 2009. See Patterson v. Stewart , 251 F.3d 1243, 1246 (9th Cir. 2001). The instant petition was filed over three years later, on November 19, 2012.
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, there is no basis for statutory tolling because petitioner's first state habeas petition was not filed until December 2010, over one year after the limitations period had already expired. See Ferguson v. Palmateer , 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed, " even if the state petition was timely filed). Accordingly, petitioner's first state petition did not toll the statute of limitations. Moreover, petitioner's remaining state habeas petitions were all filed after the limitations period had already expired, and thus, could not have extended the limitations deadline. See id.
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 does not attempt to show diligence. Nor does he present any argument as to what or how extraordinary circumstances stood in his way and prevented timely filing. See Ramirez v. Yates , 571 F.3d 993, 997 (9th Cir. 2009) (internal quotation marks and citations omitted).
More importantly, petitioner has not set forth any argument that he is entitled either statutory or equitable tolling, and the court is unaware of any basis for tolling in this case. ...