United States District Court, N.D. California
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS; AND DENYING CERTIFICATE OF APPEALABILITY
YVONNE GONZALEZ ROGERS, District Judge.
Petitioner, a state prisoner proceeding pro se, seeks a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. Respondent has moved to dismiss the petition as successive under 28 U.S.C. § 2244(b). Dkt. 9. Petitioner opposes the motion to dismiss, and Respondent has filed a reply to the opposition. For the reasons discussed below, the Court GRANTS Respondent's motion to dismiss.
In 1992, Petitioner was sentenced to forty-eight years in state prison, following his conviction of five counts of lewd and lascivious acts on a child under the age of fourteen and four counts of child molestation by means of force or violence.
On November 24, 1993, the California Court of Appeal affirmed the judgment. Resp't Ex. 1. No petition for review was filed in the California Supreme Court. Id.
On July 6, 1995, Petitioner filed his first federal habeas petition. See Case No. C 95-02431 CAL. On September 6, 1995, the Court dismissed the petition without prejudice for failure to exhaust state remedies. Resp't Ex. 2.
On April 23, 1997, Petitioner filed his second federal habeas petition. See Case No. C 97-01450 CAL. Resp't Ex. 3.
On March 4, 1998, Petitioner filed a state habeas petition in the California Supreme Court, which was denied on September 30, 1998, with citations to Ex parte Dixon, 41 Cal.2d 756, 759 (1953); In re Waltreus, 62 Cal.2d 218, 225 (1965); and Ex parte Swain, 34 Cal.2d 300, 304 (1949). Resp't Exs. 4, 5.
On February 1, 1999, the Court dismissed Petitioner's second federal habeas petition with prejudice, finding that it was wholly unexhausted at the time it was filed, and that any later federal petition that might be filed after exhaustion would be untimely under 28 U.S.C. § 2244(d) - the statute of limitations set by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Resp't Ex. 3. Thereafter, Petitioner appealed the dismissal with prejudice of his second federal habeas petition.
On December 28, 2001, the Ninth Circuit Court of Appeals issued a published opinion affirming this Court's order. See Jiminez  v. Rice, 276 F.3d 478 (9th Cir. 2001); Resp't Exs. 6, 7.
On August 27, 2002, the Ninth Circuit denied the petition for rehearing en banc. Resp't Ex. 7.
On September 4, 2002, the Ninth Circuit issued its mandate. Id.
On December 24, 2002, Petitioner filed a petition for writ of certiorari in the United States Supreme Court, which was denied on March 31, 2003. Resp't Ex. 8.
Petitioner states that he filed a state habeas petition in the San Mateo County Superior Court that was denied on October 7, 2013. Dkt. 1 at 4. He neither indicates when that petition was filed nor attaches a file-stamped copy, but under California law the state superior court was required to rule on the petition within sixty days of its filing date. See Cal. Rules of Court, rule ...