The opinion of the court was delivered by: Honorable Mikel H. Williams United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court in this habeas corpus action is Respondent Johanna Smith's Motion for Summary Dismissal. (Dkt. 13.) Petitioner has filed a Response (Dkt.14), and the Motion is ripe for consideration. Both parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Having reviewed the briefing of the parties, the record, and the state court record, the Court finds that disposition of the Motion would not be aided by oral argument. Accordingly, the Court enters the following Memorandum Decision and Order.
Petitioner pled guilty to and was convicted of five counts of rape, two counts of sexual battery of a minor, one count of disseminating material harmful to minors, and two counts of possession of sexually exploitive materials in the Fifth Judicial District Court, in Twin Falls, Idaho. The plea agreement provided for dismissal of a large number of other counts. Petitioner received a sentence of twenty-five years to life. The judgment of conviction was entered on March 26, 2004.
Petitioner filed a direct appeal, which was decided by the Idaho Court of Appeals. After that Court affirmed the conviction and sentences, Petitioner did not file a petition for review with the Idaho Supreme Court. As a result, the Court of Appeals issued its remittitur on November 17, 2005. (State's Lodging B-4.)
Nearly one year later, on November 14, 2006, Petitioner filed an application for post-conviction review in the state district court. (State's Lodging, C-1, pp. 7-12.) The application was dismissed after a motion to dismiss was filed by the State. Petitioner filed an appeal, which was heard by the Idaho Court of Appeals. After dismissal of the post-conviction application was affirmed, Petitioner filed a petition for review in the Idaho Supreme Court. (State's Lodging D-5.) The Idaho Supreme Court denied review, and its remittitur was issued on January 28, 2010. (State's Lodging D-8.)
Petitioner filed his federal Habeas Corpus Petition ("Petition") on February 25, 2010.
The current Petition is governed by the provisions of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), enacted in 1996. Under AEDPA, a one-year period of limitation applies to an application for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The one-year period begins to run from the date of one of four triggering events, as specified in 28 U.S.C. § 2244(d)(1)(A)-(D). The most common triggering event occurs on the date upon which the conviction became final, either after direct appeal or after the time for seeking an appeal expired.
The statute provides tolling (suspending) of the one-year period for all of "[t]he 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). This is called "statutory tolling."
For statute of limitations purposes, a judgment becomes final when the Idaho Court of Appeals issued its remittitur, marking the expiration of the time for filing a petition for review with the Idaho Supreme Court. See Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007); Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001).
If, after applying statutory tolling, a petitioner's petition is deemed untimely, a federal court can hear the claims only if the petitioner can establish that "equitable tolling" should be applied. In Pace v. DiGuglielmo, 544 U.S. 408 (2005), the Court clarified that,"[g]enerally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way." Id. at 418. In order to qualify for equitable tolling a circumstance must have caused Petitioner to be unable to file his federal petition in time. The ...