United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
JOHN A. MENDEZ, 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. Respondents move to dismiss the petition as time-barred. For the reasons that follow, the motion must be granted.
On April 21, 2003, petitioner pled guilty to sexual battery. ECF No. 16, Notice of Lodging Document in Paper ("Lodg. Doc.") 1. He was sentenced to a term of imprisonment on July 21, 2003. Id.; ECF No. 1 at 2. Petitioner did not appeal his conviction or sentence.
On September 5, 2013, petitioner filed a petition for writ of habeas corpus in the Placer County Superior Court. Lodg. Doc. 2. The Superior Court denied that petition on September 17, 2013. Lodg. Doc. 3. On October 17, 2013, petitioner filed a habeas petition in the California Court of Appeal, Third Appellate District. Lodg. Doc. 6. The Court of Appeal denied that petition on October 24, 2013. Lodg. Doc. 7.
Petitioner filed his federal habeas petition on February 19, 2014. 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
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, 649 (2010). Petitioner has the burden of showing facts entitling him to equitable tolling. 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.
Petitioner did not file an appeal after his sentencing on July 21, 2003. Because his "time for seeking direct review" under § 2244(d)(1)(A) expired sixty days after his sentencing, the limitations period began on September 20, 2003. See Cal. R. Ct. 8.308(a) (requiring that appeals from criminal judgments be filed within sixty days of the rendition of judgment). Although petitioner had until September 20, 2004 to file his federal habeas petition, he did not do so until February 19, ...