PETER J. BRENNAN, Petitioner,
WARDEN J. ELLIS,  Respondent.
MEMORANDUM DECISION AND ORDER
EDWARD J. LODGE, District Judge.
Pending before the Court in this habeas corpus action are Petitioner's Motion to Stay and Respondent's Motion to Dismiss, which are now fully briefed. (Dkt. 8, 11, 12, 14.) Having reviewed the record and the briefing of the parties, the Court enters the following Order.
REVIEW OF MOTION TO DISMISS
Respondent contends that Petitioner's Petition for Writ of Habeas Corpus should not be stayed pending further state court action, but that it should be dismissed for failure to meet the one-year statute of limitations deadline, because further state court action cannot retroactively cure the untimely filing of this action. Thus, the Court will first consider the Motion to Dismiss before considering the Motion to Stay.
1. Statute of Limitations Standard of Law
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. Particularly, 28 U.S.C. § 2244(d)(1) provides that the one-year statute of limitations is triggered by one of four events:
(A) the date on which the judgment became final by the 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.
Under 28 U.S.C. § 2244(d)(1)(A), finality is marked differently for petitioners who pursue a direct appeal, and those who do not. Gonzales v. Thaler , 132 S.Ct. 641, 653-54 (2012). If a petitioner pursues direct review of his conviction and/or sentence through the level of the United States Supreme Court, then the judgment becomes final when that court concludes direct appeal or denies a petition for certiorari. Id. If a petitioner pursues direct appeal through the level of the Idaho Supreme Court, then the judgment becomes final at the expiration of the time for seeking a petition for certiorari in the United States Supreme Court (90 days after the Idaho Supreme Court issues its remittitur). See id. If a petitioner's appeal is heard by the Idaho Court of Appeals, and no further review is sought, then his judgment becomes final when the Idaho Court of Appeals issues 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 a petitioner does not file an appeal at all, then his judgment of conviction becomes final 42 days after a final order or judgment is entered, which is the expiration of the time for seeking direct review. See I.A.R. 14(a); Wixom , 264 F.3d at 898.
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 postconviction 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 limitation is tolled during "all of the time which a state prisoner is attempting, through proper use of state court procedure, to exhaust state court remedies with regard to a particular post-conviction application." Harris v. Carter , 515 F.3d 1051, 1053 n. 3 (9th Cir. 2008) (quoting, and overruling on other grounds, Nino v. Galaza , 183 F.3d 1003, 1006 (9th Cir. 1999)).
In Wall v. Kholi, 131 S.Ct. 1278 (2011), the United States Supreme Court held that a motion to reduce a sentence under Rhode Island state law was a "collateral review" application that tolled the AEDPA statute of limitations under § 2244(d)(2). Idaho's Rule 35 is similar to Rhode Island's; thus, Idaho petitioners' federal habeas corpus statute of limitations may be tolled while Rule 35 proceedings are pending.
Once a federal statute of limitations has expired, it cannot be reinstated or resurrected by a later-filed state court action. See Ferguson v. Palmateer , 321 F.3d 820, 822 (9th Cir. 2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Green v. White , 223 F.3d 1001, 1003 (9th Cir. 2000) ...