OPINION AND ORDER

ALICIA G. ROSENBERG, Magistrate Judge.

I.

SUMMARY OF PROCEEDINGS

On October 22, 2010, a San Luis Obispo County jury convicted Petitioner of seven counts of check forgery or counterfeiting. The jury also found true that Petitioner had committed felonies while on bail. Petitioner admitted one strike and three prior prison terms. (Petition at 2; Lodged Document ("LD") 1 at 158-61, 164-67); see People v. Price, 2012 WL 1571513, *1 (Cal. App. Ct. 2012). Petitioner was sentenced to 10 years, 4 months in prison. (LD 1 at 284.)

On May 7, 2012, the California Court of Appeal affirmed the judgment with modifications as to restitution, fees, and conduct credits. (LD 3.) On July 18, 2012, the California Supreme Court denied review. (LD 5.)

On December 26, 2012, Petitioner constructively filed a habeas petition in the Superior Court, which was denied on January 3, 2013. (LD 6-7.) On June 11, 2013, Petitioner constructively filed a habeas petition in the Court of Appeal, which was denied on August 19, 2013. (LD 8-9.) On November 25, 2013, Petitioner filed a habeas petition in the California Supreme Court, which was denied on February 11, 2014. (LD 10-11.)

On August 12, 2014, Petitioner filed the instant petition in this court in which he listed five grounds. The parties consented to proceed before the magistrate judge. (Dkt. Nos. 2, 13.) On February 20, 2015, Respondent filed a motion to dismiss the petition as barred by the statute of limitations. Petitioner filed an opposition ("Opp.") and Respondent filed a reply.

II.

STATUTE OF LIMITATIONS

The petition was filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Therefore, the court applies the AEDPA in reviewing the petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L. Ed. 2d 481 (1997).

The AEDPA has a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The one-year limitations period starts running on the latest of either the date when a conviction becomes final under 28 U.S.C. § 2244(d)(1)(A) or a date set in § 2244(d)(1)(B)-(D).

A. Section 2244(d)(1)(A) — The Date on Which Conviction Became Final

The California Supreme Court denied the petition for review on July 18, 2012. (Petition at 3.) Petitioner's conviction became final 90 days later on October 16, 2012. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The statute of limitations expired one year later on October 16, 2013. Absent tolling, the petition is time-barred.

1. Statutory Tolling

The statute of limitations is tolled during the time "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).

Petitioner constructively filed his first habeas petition in the Superior Court on December 26, 2012, 71 days after his conviction became final. (LD 6.) It was denied on January 3, 2013. The Superior Court's decision indicated that Petitioner "has not stated or explained any reason which caused him a delay in bringing to the attention of the court the defects in his trial that he now alleges." (LD 7 at 6-7.) Nevertheless, assuming without deciding that Petitioner is entitled to statutory tolling during the period December 26, 2012 through January 3, 2013, he had 294 days remaining in the limitations period.

After the Superior Court's denial on January 3, 2013, Petitioner did not constructively file his next habeas petition in the Court of Appeal until June 11, 2013, 159 days later. (LD 8.) "As long as [a] prisoner file[s] a petition for appellate review within a `reasonable time,' he [may] count as `pending' (and add to the 1-year time limit) the days between (1) the time the lower state court reached an adverse decision, and (2) the day he filed a petition in the higher state court." Evans v. Chavis, 546 U.S. 189, 193, 126 S.Ct. 846, 163 L. Ed. 2d 684 (2006). A six-month delay is not reasonable. Id. at 201.

The 159-day gap between January 3 and June 11, 2013 is unreasonable. In Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per curiam), the Ninth Circuit held that because the petitioner's unexplained delays of 101 and 115 days "were substantially longer than the `30 to 60 days' that `most States' allow for filing petitions . . ., we fail to see how `unexplained' delay[s] of this magnitude could fall within the scope of the federal statutory word `pending.'" Id. at 1048 (quoting Evans, 546 U.S. at 201, emphasis added by Chaffer)). In Velasquez v. Kirkland, 639 F.3d 964 (9th Cir. 2011), the Ninth Circuit found inadequately explained gaps of 81 days and 91 days to be unreasonable. Id. at 968.

Accordingly, Petitioner is not entitled to statutory tolling for the 159-day gap. After denial of the habeas petition by the Court of Appeal on August 19, 2013, Petitioner had 135 days remaining in the limitations period (294-159).

Petitioner constructively filed his last habeas petition in the California Supreme Court on November 19, 2013,1 92 days after the denial by the Court of Appeal on August 19, 2013. For the same reason as stated above, Petitioner is not entitled to statutory tolling for the 92-day gap. Thus, at the point the California Supreme Court denied his habeas petition on February 11, 2014, Petitioner had 43 days left in the limitations period. The statute of limitations expired on March 26, 2014.

The proof of service indicates the federal petition here was served in August 2014. Although the proof of service does not specify a day, the petition is just under five months late (128 days) even assuming it was constructively filed on August 1, 2014.

2. Equitable Tolling

"[T]he timeliness provision in the federal habeas corpus statute is subject to equitable tolling." Holland v. Florida, 560 U.S. 631, 634, 130 S.Ct. 2549, 2554, 177 L. Ed. 2d 130 (2010). "[A] `petitioner' is `entitled 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 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L. Ed. 2d 669 (2005)). "The diligence required for equitable tolling purposes is `reasonable diligence,' not `maximum feasible diligence.'" Id. at 653 (citations and quotation marks omitted). The extraordinary circumstances must have been the cause of an untimely filing. Pace, 544 U.S. at 418. "[E]quitable tolling is available for this reason only when `"extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time"` and `"the extraordinary circumstances" were the cause of [the prisoner's] untimeliness.'" Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citations omitted, emphasis in original). Extraordinary circumstances cannot toll a statute of limitations that has already run. Rudin v. Myles, 781 F.3d 1043, 1056 n.16 (9th Cir. 2015).

Petitioner has the burden of showing that the statute of limitations was tolled. Banjo v. Ayres, 614 F.3d 964, 967 (9th Cir. 2010).

As discussed above, Petitioner's conviction became final on October 16, 2012. By that time, Petitioner had received the record on appeal from his counsel. (Price Decl. ¶¶ 7-9.) Petitioner was then incarcerated at Clark County Detention Center ("CCDC") in Nevada. (Id. ¶ 1.)

Petitioner argues that he is entitled to equitable tolling for the 71-day period from October 16, 2012 through the constructive filing date of his first state habeas petition on December 26, 2012. Petitioner states he prepared the petition and, on November 12, 2012, submitted it to the law library at CCDC for copying but "all the pages were lost."2 (Id. ¶ 11.) Petitioner drafted a second petition, had it copied, and constructively filed it on December 26, 2012. (Id. ¶ 12; LD 6.) At best, Petitioner could claim equitable tolling for the days from November 12 to December 26, 2012 (44 days).

Petitioner does not adequately explain the 159-day delay between the Superior Court's denial on January 3 and the constructive filing date of his habeas petition before the California Court of Appeal on June 11, 2013. As Petitioner acknowledges, the habeas petition before the California Court of Appeal was largely a copy of the Superior Court petition except for the conclusion and section regarding Petitioner's reason for delay. (Id. ¶ 18; compare LD 6 with LD 8.) Petitioner states his legal materials were moved from his cell to the property room in January 2013, and he requested access to those materials in February and March 2013. (Id. ¶¶ 13-17.) Petitioner provides no evidence that he had no access to any materials either through the prison or Tobi Caperon, the person to whom Petitioner sent petition(s) for copying and/or mailing. (Id. ¶ 10; LD 8 at 25.)

Petitioner argues that he is entitled to equitable tolling for the 57-day period from August 19, 2013, the date of the California Court of Appeal's denial, until he returned to Ironwood state prison in California on October 15, 2013. (Id. ¶ 4.) Although not included in his declaration, Petitioner argues that, while he was incarcerated in CCDC, he did not have another California MC-275 habeas form to send to the California Supreme Court. (Opp. at 1-2.) He had asked the CCDC to make a copy of a blank form, but it refused to do so. (Id.) Petitioner is not entitled to equitable tolling for this period because nothing prevented him from changing the court on the form he used in the California Court of Appeal or using that template to prepare a petition for the California Supreme Court. The court notes that the outcome would not change even if equitable tolling is given for this period.

Even assuming Petitioner would be entitled to equitable tolling for the 44-day period between November 12 and December 26, 2012, the petition would remain time-barred.

Finally, Petitioner argues he is entitled to equitable tolling from October 16, 2012 until he returned to California on October 15, 2013, because he had no access to California court rules or legal authority. (Opp. at 2.) CCDC uses a slip delivery system under which an inmate requests legal material and the prison provides 20 pages of material at a time. (Price Decl. ¶ 6.) Petitioner attaches a Nevada court order that required CCDC to provide Petitioner double the normal allowance for library access while incarcerated pending trial in the Nevada matter. (Opp. at 18.) Petitioner also contends he did not have access to "the record or other material from the case." (Opp. at 3.)

Petitioner has not shown that these circumstances made it impossible to file a petition on time and were the cause of his untimeliness. Bills, 628 F.3d at 1097. During that time, Petitioner filed two extensive state habeas petitions in the Superior Court and California Court of Appeal with case citations, record citations and exhibits. (LD 6, 8.) Moreover, when Petitioner returned to California on October 15, 2013, he had over five months before the statute of limitations expired on March 26, 2014. Petitioner argues that he was transferred to another prison on February 12, 2014 and did not receive his property until late April 2014. (Price Decl. ¶¶ 31-33.) Petitioner then inexplicably waited three months before constructively filing here on August 1, 2014 (92 days from May 1, 2014). This argument is insufficient. See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1014 (9th Cir. 2009) (petitioner could at least have filed petition earlier assuming some lateness could have been excused).

3. State Impediment

In addition to equitable tolling, Petitioner claims that he is entitled to tolling based on the state-created impediment when he was incarcerated in Nevada.

Under 28 U.S.C. § 2244(d)(1)(B), the statute of limitations starts to run on "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."

Petitioner must show a causal connection between the unlawful impediment and his failure to file a timely habeas petition. Bryant v. Arizona Attorney General, 499 F.3d 1056, 1060 (9th Cir. 2007). In Bryant, "lack of access to case law during the relevant time period was not an impediment for purposes of statutory tolling because it did not prevent [petitioner] from filing his petition."

Id.

Petitioner has not identified an impediment that prevented him from filing a petition. Petitioner argues that he did not have access to California legal authorities or his record. However, as noted above, Petitioner filed two extensive state habeas petitions in the Superior Court and California Court of Appeal with record citations and exhibits while incarcerated in Nevada. (LD 6, 8.) Although Petitioner cites another case he filed in this court, Price v. Cameron, CV 11-2326 JAK (AGRx), the docket indicates that Petitioner filed several documents while incarcerated in Nevada. (See, e.g., Dkt. Nos. 34 (opposition to motion to dismiss complaint), 54 (third amended complaint), 57 (document requests), 69 (motion to extend discovery cut-off date), 80 (request for inspection of documents), 92-93 (motion to compel discovery and extend discovery cut-off date).)

Because Petitioner has not established a causal connection between the unavailability of California legal authorities or his record, and the untimeliness of his federal petition, Petitioner is not entitled to statutory tolling under 28 U.S.C. § 2244(d)(1)(B). See Ramirez v. Yates, 571 F.3d 993, 1001 (9th Cir. 2009) (ability to file state habeas petitions indicated administrative segregation did not constitute impediment to filing); Bryant, 499 F.3d at 1060.

III.

ORDER

For the reasons discussed above, it is ORDERED that judgment be entered granting Respondent's motion to dismiss the petition as barred by the statute of limitations and denying the petition with prejudice.