United States District Court, E.D. California
REIGH C. ELLIS, Petitioner,
RICK HILL,  Respondent.
FINDINGS AND RECOMMENDATIONS
MORRISON C. ENGLAND, Jr., District Judge.
Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition as untimely. ECF No. 14. For the following reasons, the motion must be granted.
On April 4, 2003, petitioner pled no contest to second degree murder and was sentenced to an indeterminate state prison term of fifteen years to life. ECF No. 18, Notice of Lodging Document in Paper ("Lodg. Docs."), Doc. 1 (Abstract of Judgment from Butte County Superior Court). Petitioner appealed and the California Court of Appeal affirmed the judgment. Lodg. Doc. 2. Petitioner filed a petition for review in the California Supreme Court, which denied the petition on January 12, 2005. Lodg. Docs. 3-4.
Petitioner subsequently filed nine state habeas petitions and one federal habeas application. He filed his first state petition in Butte County Superior Court on November 30, 2005. Lodg. Doc. 5. That petition was denied the same day. Lodg. Doc. 6. He filed a second state petition in the California Court of Appeal on March 8, 2006. Lodg. Doc. 7. That petition was denied on March 16, 2006. Lodg. Doc. 8. Petitioner filed a federal habeas application on April 6, 2006. Lodg. Doc. 21. On March 1, 2010, the court dismissed the application without prejudice pursuant to petitioner's notice of voluntary dismissal. Id. Petitioner filed his third state petition in the California Supreme Court on April 17, 2007. Lodg. Doc. 9. That petition was denied November 28, 2007. Lodg. Doc. 10. Petitioner filed six additional state petitions between December 5, 2008, and June 27, 2013, each of which was denied. Lodg. Docs. 11-20.
Petitioner filed the present petition on November 3, 2013. ECF No. 1.
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 if the second petition was filed within a "reasonable time" after the denial of the first. Carey v. Saffold, 536 U.S. 214, 221 (2002); Stancle v. Clay, 692 F.3d 948, 956 (9th Cir. 2012); see also Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011) (finding that delays of ninety-one days and eighty-one days are "far longer than the Supreme Court's thirty-to-sixty-day benchmark for California's reasonable time' requirement, " and are, without adequate explanation, unreasonable under California law). 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 filed 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 ...