ORDER GRANTING RESPONDENT'S MOTION TO DISMISS; DENYING CERTIFICATE OF APPEALABILITY (Docket No. 13)

LUCY H. KOH, District Judge.

Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2008 criminal judgment imposed by the Superior Court of Santa Clara County. The court issued an order to show cause. In lieu of an answer, respondent has filed a motion to dismiss the petition as untimely. Petitioner has filed an opposition, and respondent has filed a reply. Petitioner has also filed an unauthorized response to respondent's reply. See Civil L. R. 7-3(3). For the reasons stated below, the court GRANTS respondent's motion to dismiss the petition as untimely.

I. BACKGROUND

On June 20, 2006, a Santa Clara Superior Court jury found petitioner guilty of committing home invasion robbery. (Mot. at 2 and Ex. C at 54.) The jury also found true several enhancements. (Mot. at 2.) On March 21, 2008, the trial court sentenced petitioner to a term of 19 years in state prison. (Mot., Ex. A at 2 and Ex. C at 54.) On June 25, 2010, the California Court of Appeal affirmed the judgment. (Mot., Ex. A.) On October 13, 2010, the California Supreme Court denied petitioner's petition for review. (Mot., Ex. B.)

On June 14, 2011,1 petitioner filed a state habeas petition in Superior Court, which was denied on October 6, 2011. (Mot. at 2, Exs. C and D.) On November 28, 2011, petitioner filed a state habeas petition in the California Court of Appeal, which was denied on November 30, 2011 because it was filed in the wrong district . (Opp., Ex. A at 5-6.) On January 23, 2012, petitioner filed a state habeas petition in the California Supreme Court, which was denied on September 19, 2012. (Mot., Exs. E and F; Opp., Ex. B.)

On February 28, 2013, petitioner's federal habeas petition was received by the prison mailroom. (Doc. No. 1-1 at 2.)

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became law on April 24, 1996, and imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year time limit. 28 U.S.C. § 2244(d)(2).

The one-year period generally will run from "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). Here, petitioner's conviction became final on January 11, 2011 — 90 days after the California Supreme Court denied petitioner's petition for review on October 13, 2010. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where petitioner did not file petition for certiorari, his conviction became final 90 days after the California Supreme Court denied review). Thus, petitioner had until January 11, 2012 to file his federal habeas petition. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Absent tolling, petitioner's federal petition, filed on February 28, 2013, therefore, is untimely.

The one-year statute of limitations is tolled under § 2244(d)(2) for 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." 28 U.S.C. § 2244(d)(2). Here, the limitations period was tolled for 114 days — from June 14, 2011, through October 6, 2011. Thus, petitioner's statute of limitations extended for 114 days, making petitioner's new deadline May 4, 2012.

Respondent argues, and the court agrees, that petitioner's next state habeas petition, filed in the California Court of Appeal on November 23, 2011, did not toll the statute because the petition was filed in the wrong appellate court, and thus, not properly filed. "[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable [state] laws and rules governing filings," which "usually prescribe . . . the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (emphasis and footnote omitted). An improperly filed state habeas petition does not toll the AEDPA limitation period because it is treated "as though it never existed." Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011).

Even though petitioner filed a petition for writ of habeas in the California Court of Appeal, First Appellate District, it does not qualify for tolling because it was not properly filed. Petitioner should have filed his petition in the Sixth Appellate District. Indeed, the First Appellate District's rejection of the petition without prejudice demonstrates that the petition was not properly filed. (Opp. Ex. A at 5, citing Cal. Rules of Ct., rule 8.385(c).) The limitations period is not tolled when a petition is filed in the wrong state court. Artuz, 531 U.S. at 8-9 (recognizing that a properly filed application is one in which "its delivery and acceptance are in compliance" with state laws regarding "the court and office in which [the document] must be lodged"); see, e.g., Hood v. Galaza, 47 F.Supp.2d 1144, 1147 (S.D. Cal. 1999) (finding a habeas petition was not properly filed when petitioner incorrectly sent his state petition to Kings County Superior Court rather than San Diego County Superior Court), certificate of appealability denied, No. 99-56146 (9th Cir. Sept. 21, 1999). Therefore, the petition filed in the First Appellate District was not properly filed because petitioner filed it in the wrong state court. Thus, the filing of the state habeas petition in the First Appellate District does not entitle petitioner to statutory tolling.

Because the state petition in the California Court of Appeal does not count toward the tolling of the statute of limitation, the court must next determine whether petitioner's state petitions were "pending" between the denial of his state habeas petition in Superior Court, and the filing of his state habeas petition in the California Supreme Court 109 days later. To determine whether an application was "pending" for tolling purposes, a federal court must decide "when a [California] review application (i.e., a filing in a higher court) comes too late." Carey v. Saffold, 536 U.S. 214, 223 (2002). In other words, it must determine whether a petitioner "delayed `unreasonably' in seeking [higher state court] review." Id. at 225. If so, the application would no longer have been "pending" during the period at issue. Id.

Noting that six months is far longer than the 30 to 60 days that most states provide for filing an appeal, the Supreme Court in Evans held that an unjustified or unexplained 6-month delay between post-conviction applications in California is not "reasonable" and does not fall within Carey's definition of the term "pending." Evans v. Chavis, 546 U.S. 189, 201 (2006); see Chaffer v. Prosper, 592 F.3d 1046, 1048 n.1 (9th Cir. 2010) (per curiam). Thereafter, the Ninth Circuit held that unexplained, and hence unjustified, delays of 101 and 115 days between California habeas petitions were not reasonable. See id. at 1048; see e.g., Stewart v. Cate, No. 10-55985, 2014 WL 1707033, *5-*6 (9th Cir. May 1, 2014) (finding 100 day delay between denial of state petition in appellate court and filing of state petition in state supreme court unreasonable); Stancle v. Clay, 692 F.3d 948, 956 (9th Cir. 2012) (finding 82 day delay unreasonable); Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011) (finding 91 and 81 days delay between state habeas petitions was "unreasonable" with no indications from the California courts to the contrary); Livermore v. Sandor, No. 08-16181, 2012 WL 2513951, *1 (9th Cir. 2012) (unpublished memorandum disposition) (76 day delay between denial in Superior Court and filing in California Court of Appeal not a reasonable delay).

Petitioner argues that the 109 day delay between his state petitions is reasonable because he was housed in administrative segregation for the entire time, had limited access to his legal materials and access to the law library, is not legally trained, and acted in good faith. However, a review of petitioner's Superior Court petition and petition to the California Supreme Court demonstrates that they are virtually identical, with most pages of the petitions appearing to be xerox copied. It is not reasonable that petitioner would need excess time to re-file an already written brief. In addition, in petitioner's petition to the California Supreme Court, petitioner indicated that his petition to the California Court of Appeal raised the same claims as in his petition to the Superior Court. (Doc. No. 28, Ex. E.) And, when the California Court of Appeal denied petitioner's petition as improperly filed, the Court of Appeal returned petitioner's original petition and copies of the petition to petitioner. (Opp., Ex. A at 5.) Accordingly, the court finds that the 109 day period between the denial of petitioner's Superior Court petition and the filing of petitioner's California Supreme Court petition is unreasonable, and thus, not tolled.

The statute of limitations was tolled again, however, when petitioner filed his state habeas petition in California Supreme Court on January 23, 2012. It began to run again 240 days later, when the California Supreme Court denied the petition on September 19, 2012. Thus, petitioner's statute of limitations was extended for another 240 days.

In sum, the statute of limitation was statutorily tolled while petitioner's properly filed state habeas petition was pending in Superior Court — June 14, 2011, through October 6, 2011 — and when petitioner's properly filed state habeas petition was pending in California Supreme Court — January 23, 2012, through September 19, 2012. During those periods, the statute of limitation was tolled for a total of 354 days, making petitioner's new deadline December 30, 2012. Even with 354 days of tolling, however, petitioner's federal habeas petition, filed on February 28, 2013, was still filed 60 days too late.

Absent equitable tolling, petitioner's federal petition is still untimely. The Supreme Court has determined that Section 2244(d) is subject to equitable tolling in appropriate cases. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). "[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. at 2562 (internal quotation marks omitted). Once a petitioner is notified that his petition is subject to dismissal based on AEDPA's statute of limitations and the record indicates that the petition falls outside the one-year time period, the petitioner bears the burden of demonstrating that the limitation period was sufficiently tolled under statutory or equitable principles. See Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002).

Petitioner does not explicitly argue that he is entitled to equitable tolling. Petitioner's statements that he had limited access to his legal materials and access to the law library and is not legally trained do not entitle him to equitable tolling. First, a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). Next, although petitioner argues that he had limited access to the law library or to his legal materials, as the court noted above, petitioner raised the same claims in each of his state petitions, and the California Court of Appeal returned his original petition and copies of the same. Petitioner's federal petition is mostly verbatim of his Superior Court and California Supreme Court petitions. Petitioner does not explain what other legal materials he might have needed in order to timely file a federal petition. Cf. Ford v. Pliler, 590 F.3d 782, 790 (9th Cir. 2009) (affirming district court's determination that petitioner was not entitled to equitable tolling based on lack of access to his legal files because the record showed petitioner was aware of the factual basis for his claims without the files). Moreover, petitioner provides no evidence to support the notion that he is entitled to equitable tolling. Each copy of the four requests that petitioner submitted requesting access to the law library specify that he was requesting priority user status because he has a court imposed deadline for a Sacramento court, case number 11F05197. (Doc. No. 16, Ex. C.) The requests for priority user status also aver that petitioner will only work on that specified case during his law library hours. (Id.) The judgment petitioner is challenging in this federal petition is from Santa Clara County, not from Sacramento. The requests for priority user status from November 1, 2011, through August 21, 2012, to work on an unrelated action hardly demonstrates that petitioner was diligently pursuing his rights to ensure that he filed a timely federal petition in this action.

Accordingly, the petition must be dismissed as untimely under 28 U.S.C. § 2244(d).

III. CONCLUSION

Respondent's motion to dismiss the petition is GRANTED. The instant petition is DISMISSED. The clerk shall terminate all pending motions and close the file.

IV. CERTIFICATE OF APPEALABILITY

For the reasons set out in the discussion above, petitioner has not shown "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a certificate of appealability is DENIED.

IT IS SO ORDERED.