The opinion of the court was delivered by: Honorable Mikel H. Williams United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Respondent's Renewed Motion for Summary Dismissal (Dkt. 26) and Petitioner's Application for Equitable Tolling (Dkt. 4). The Court provided Petitioner with additional time to respond to the Renewed Motion to Dismiss and to reply to the Response to the Application, through August 31, 2011. Petitioner has filed nothing further to date, and, thus, the Court considers the Motion and Application fully briefed.
Both parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 12, 14.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. Having fully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, in the interest of avoiding further delay, the Court shall decide this matter on the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.
MOTION FOR SUMMARY DISMISSAL
Petitioner was convicted of three counts of lewd and lascivious conduct, after trial by jury in the Third Judicial District Court in Canyon County, Idaho. On September 2, 2004, his judgment of conviction was entered. He was sentenced to ten years fixed with ten years indeterminate for each count, to run concurrently. (State's Lodging A-1, pp. 06-07.)
On direct appeal, the Idaho Court of Appeals affirmed the judgment and convictions. (State's Lodging B-4.) Petitioner filed a petition for review with the Idaho Supreme Court, which was denied on May 11, 2006, with the remittitur being issued the same day. (State's Lodgings B-5 through B-8.)
On October 2, 2006,*fn1 Petitioner filed a state post-conviction action. (Dkt. C-1.) The state district court granted the State's motion for summary dismissal, with the order of dismissal entered on January 26, 2007. (State's Lodging C-5.) Petitioner did not file an appeal within the 42-day appeal period, which ended March 10, 2007. Petitioner alleges that, in August 2007 (five months after the deadline for appeal expired), he gave a prison paralegal a notice of appeal to mail to the state district court to appeal the post-conviction dismissal order in August 2007. (Dkt. 4.) No notice of appeal was ever filed.
Petitioner next filed a motion for correction of sentence on February 21, 2008, which was denied on May 27, 2008. (State's Lodgings D-1 & D-3.) He did not appeal.
Petitioner filed a second such motion on October 20, 2008, which was denied on December 16, 2008. (State's Lodgings D-4 & D-5.) He filed a notice of appeal on February 9, 2009 (mailbox rule), but because the notice was filed more than 42 days after the Order of December 16, 2008, the appeal was dismissed. (State's Lodgings D-7 through D-9.)
In this habeas corpus action, the Petition was filed by the Clerk of Court on April 23, 2009.*fn2 ( Dkt. 3.)
2. Standard of Law Governing Timeliness
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily dismiss a petition for writ of habeas corpus when "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." In such case, the Court construes the facts in a light most favorable to the petitioner. Summary dismissal of a habeas petition on statute of limitations grounds is permissible so long as the court provides the petitioner adequate notice of its intent to dismiss and an opportunity to respond. Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir. 2001) (sua sponte dismissal).
The Anti-Terrorism and Effective Death Penalty Act (AEDPA), enacted April 24, 1996, established a one-year statute of limitations for federal habeas corpus actions. See 28 U.S.C. § 2244(d)(1). Because Petitioner's federal habeas corpus petition was filed on April 23, 2009, after AEDPA's enactment date, it is subject to the one-year statute of limitations.
To calculate the statute of limitations deadline, a petitioner must determine when his state court judgment became final. His federal petition is due within one year of "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
AEDPA also contains a tolling provision that stops the one-year limitation period from running during the time in "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). The Ninth Circuit has interpreted 28 U.S.C. § 2244(d)(2) to mean that the one-year statute of limitations is tolled for "all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (citation and internal quotation marks omitted).
3. Discussion of Timeliness
Petitioner's judgment of May 11, 2006, became final when the 90-day period for filing a petition for certiorari with the United States Supreme Court expired, which was August 9, 2006. See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). The federal habeas statute of limitation period of one-year began to run on that date. It ran for 53 days until Petitioner filed his state petition for post-conviction review on October 2, 2006, which statutorily tolled the statute of limitations.
The post-conviction case was dismissed on January 26, 2007, and the time for filing a state court appeal expired 42 days later on March 10, 2007.*fn3 As a result, the federal statute of limitations began running again on March 11, 2007, and continued until it expired on January 16, 2008 (53 days 312 days = 365 days). Petitioner's first Rule 35 motion, filed February 21, 2008, was too late to toll the statute. See Ferguson v. Palmateer, 321 F.3d 820, 822 (9th Cir. 2003) ("§ 2244(d) does not permit the reinitiation of the limitations period that has ended before the state ...