United States District Court, C.D. California
ORDER TO SHOW CAUSE
ROBERT N. BLOCK, Magistrate Judge.
Petitioner, who currently is confined at a state prison facility in Soledad, California, constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody herein on January 11, 2015 (proof of service date). The Petition purported to be directed to a 2007 judgment of conviction sustained by petitioner in Los Angeles County Superior Court for two crimes against a child-aggravated sexual assault and forcible lewd act. The operative petition is the First Amended Petition "FAP") filed by petitioner on April 13, 2015, in which petitioner is alleging two grounds for relief: a claim directed to the trial court's denial of his motion to suppress statements he made during a police interview/interrogation on April 3, 2006; and an insufficiency of the evidence claim.
Since this action was filed after the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") on April 24, 1996, it is subject to the AEDPA's one-year limitation period, as set forth at 28 U.S.C. § 2244(d). See Calderon v. United States District Court for the Central District of California (Beeler) , 128 F.3d 1283, 1287 n.3 (9th Cir. 1997), cert. denied, 522 U.S. 1099 and 118 S.Ct. 1389 (1998). 28 U.S.C. § 2244(d) provides:
"(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."
Here, it appears from the face of the FAP that petitioner's Petition for Review was denied by the California Supreme Court on April 22, 2009. Thus, "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review" was July 21, 2009, when the 90-day period for petitioner to petition the United States Supreme Court for a writ of certiorari expired. See Bowen v. Roe , 188 F.3d 1157, 1158-59 (9th Cir. 1999); Beeler , 128 F.3d at 1286 n.2. Moreover, given the nature of petitioner's two claims herein, it does not appear that any of the other "trigger" dates under 28 U.S.C. § 2244(d)(1) apply here. See Hasan v. Galaza , 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (statute of limitations begins to run when a prisoner "knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance"). Thus, unless a basis for tolling the statute existed, petitioner's last day to file his federal habeas petition was July 21, 2010. See Patterson v. Stewart , 251 F.3d 1243, 1246 (9th Cir. 2001); Beeler , 128 F.3d at 1287-88.
28 U.S.C. § 2244(d)(2) provides:
"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 shall not be counted toward any period of limitation under this subsection."
In Nino v. Galaza , 183 F.3d 1003 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000), the Ninth Circuit construed the foregoing tolling provision with reference to California's post-conviction procedures. The Ninth Circuit held that "the statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge." See id. at 1006. Accord, Carey v. Saffold , 536 U.S. 214, 219-21, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (holding that, for purposes of statutory tolling, a California petitioner's application for collateral review remains "pending" during the intervals between the time a lower state court denies the application and the time the petitioner files a further petition in a higher state court). However, the statute of limitations is not tolled during the interval between the date on which the judgment of conviction became final and the filing of the petitioner's first collateral challenge. See Nino , 183 F.3d at 1006.
Here, it appears from the face of the Petition and the attachments thereto that petitioner's first collateral challenge was the Los Angeles County Superior Court habeas petition that he constructively filed on or about August 13, 2009, in which he raised claims generally corresponding to the two grounds for relief being alleged in the FAP. That petition was summarily denied on August 31, 2009. As a result of its pendency, petitioner's federal filing deadline was extended by 19 days to August 9, 2010.
However, petitioner would not be entitled to any statutory tolling for the 3-1/2 year interval between the August 31, 2009 denial of his first Superior Court habeas petition and the filing of his next state court collateral challenge-i.e., his second Superior Court habeas petition filed in March 2014, in which he alleged an ineffective assistance of counsel during plea bargaining claim. See King v. Roe , 340 F.3d 821, 823 (9th Cir. 2003) (holding that when a petitioner files two rounds of state petitions, and either the second round of petitions are denied as untimely, or the second round of petitions are not limited to an elaboration of the facts relating to the claims raised in the first round of petitions, the gap between the two rounds is not tolled under any circumstance); Dils v. Small , 260 F.3d 984, 986 (9th Cir. 2001) (no interval tolling accorded for interval between successive California Supreme Court habeas petitions); see also, e.g., Gaston v. Palmer , 417 F.3d 1030, 1043 (9th Cir. 2005) ("a California habeas applicant ...