ORDER AND FINDINGS AND RECOMMENDATIONS

EDMUND F. BRENNAN, Magistrate Judge.

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition as untimely and barred by Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). After briefing on the motion was completed, petitioner filed a request for leave to file a surreply (ECF No. 15). Local Rule 230 contemplates a motion, an opposition and a reply. A surreply is not an authorized filing and petitioner's request for leave to file a surreply is denied.

I. Background

Petitioner challenges a disciplinary finding that he committed battery on another inmate on March 8, 2011. ECF No. 1. According to petitioner, it was the other inmate who attacked him while the prisoners were inadequately supervised, but petitioner was found guilty of assault due to the retaliatory acts of prison staff. Id. at 8-12. The determination of guilt carried with it a forfeiture of 75 days of behavioral credit. Id. at 55. Petitioner wishes to have the discipline expunged from his file and the behavioral credit restored. Id. at 26.

II. The Limitations Period

Under the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), a one-year limitations period for seeking federal habeas relief begins to run from the latest of: (1) the date the judgment became final on direct review (or April 25, 1996, if the judgment became final prior to AEDPA's enactment), (2) the date on which a state-created impediment to filing is removed, (3) the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review, or (4) the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D); Malcom v. Payne, 281 F.3d 951, 955 (9th Cir. 2002).

Where, as here, the petition challenges a prison disciplinary finding rather than a state court judgment, § 2244's one-year limitation period still applies and the date the statute of limitations begins to run is determined under subparagraph (D. § 2244(d)(1) — the date when the factual predicate of the claim could have been discovered by the petitioner through the exercise of due diligence. In prison disciplinary matters, this date is typically the date the prison disciplinary decision becomes final on administrative review. Shelby v. Bartlett, 391 F.3d 1061, 1063-66 (9th Cir. 2004) (AEDPA's limitation period applies "even if the petition challenges a pertinent administrative decision rather than a state court judgment," and the factual predicate under § 2244(d)(1) (D) is the date the state prisoner received notice that his administrative appeal challenging the revocation of good time credits was denied); see also Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003) (limitations period began to run when parole board denied prisoner's administrative appeal challenging the board's decision that he was unsuitable for parole).

A. Statutory Tolling

No statute tolls the limitations period "from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed. . . ." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). However, if a petitioner properly files a state post-conviction application prior to the expiration of the limitations period, the period is tolled and remains tolled for the entire time that application is "pending." 28 U.S.C. § 2244(d)(2). "[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post-conviction application is "pending" during the intervals between a lower court decision and the filing of a new petition in a higher court if the second petition was filed within a "reasonable time" after the denial of the first. Carey v. Saffold, 536 U.S. 214, 221 (2002); Stancle v. Clay, 692 F.3d 948, 956 (9th Cir. 2012); see also Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011) (finding that delays of ninety-one days and eighty-one days are "far longer than the Supreme Court's thirty-to-sixty-day benchmark for California's `reasonable time' requirement," and are, without adequate explanation, unreasonable under California law). A federal habeas application does not provide a basis for statutory tolling, Duncan v. Walker, 533 U.S. 167, 181-82 (2001), nor does a state petition filed after the federal limitations period has expired, Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).

B. Equitable Tolling

The limitations period may also be equitably tolled where a habeas petitioner establishes two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631 (2010). Petitioner has the burden of showing facts entitling him to equitable tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). The threshold necessary to trigger equitable tolling is very high, "lest the exceptions swallow the rule." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Equitable tolling may be applied only where a petitioner shows that some external force caused the untimeliness. Id.

C. Analysis

The parties do not dispute the timing of various events relevant to the determination of the limitations period. Petitioner's administrative appeal of his discipline became final on September 19, 2011, when it was denied at the third and final level of review, and that the limitations period began to run the following day. ECF No. 1 at 85; ECF No. 12 at 3; ECF No. 13 at 3. The limitations period ran until petitioner filed a state superior court petition on October 16, 2011. ECF No. 1 at 71; ECF No. 14 at 2 n.1; ECF No. 13 at 3. That petition was denied on December 16, 2011. ECF No. 1 at 71-73. Petitioner filed an unexhausted federal petition on October 9, 2012, which was dismissed on February 13, 2013. ECF No. 12-5 at 28-29. The same day (February 13, 2013), petitioner filed a petition in the California Supreme Court, which was denied on April 10, 2013. Id. at 3; ECF No. 1 at 74. The instant petition was filed on July 18, 2013. ECF No. 1.

Thus, absent tolling, 667 days elapsed between start of the limitations period and the filing of this petition—302 days in excess of AEDPA's one-year limitations period. Respondent concedes, however, that petitioner was entitled to statutory tolling for the time in which his superior court petition was pending, 61 days. Respondent correctly argues that petitioner's unexhausted federal petition provides no basis for statutory tolling. Respondent also argues that the limitations period had already expired by the time petitioner filed in the California Supreme Court on February 13, 2013, because 26 days elapsed between the final determination of petitioner's administrative appeal and his first state court petition and 425 days elapsed between the denial of the superior court petition and the filing of the supreme court petition, bringing the total elapsed time to 451 days, or 86 days in excess of the 365-day limitations period. Because the 425-day delay between state petitions was unreasonable, respondent argues, it cannot toll the AEDPA limitations period. See, e.g., Velasquez, 639 F.3d at 968. Further, because an untimely state petition does not revive an expired federal limitations period, petitioner's state supreme court petition provides no basis for statutory tolling. Ferguson, 321 F.3d at 823. Thus, the bare timings of petitioner's filings indicate that the instant petition is untimely by 241 days.

Petitioner argues, essentially, that the delay between the denial of his superior court petition and the filing of his state supreme court petition was not unreasonable because, due to staff misconduct, he did not receive the superior court denial until April 17, 2012. ECF No. 13 at 4-5. He argues that he received that order along with numerous other legal materials on that date in a state of such disarray that he became confused. Id. at 5. This confusion caused him to file the unexhausted federal petition on October 9, 2012 instead of exhausting the case by filing in the California Supreme Court. Id. When he realized the petition was not exhausted, he requested its voluntary dismissal on February 13, 2013.

Petitioner's argument would justify tolling of the limitations period during the pendency of both state petitions as well as the time between them, a total of 543 days. Because just 26 days passed between the final administrative determination and the filing of the first petition, and 99 days passed between the state supreme court denial and the filing of this case, petitioner's argument would bring his case well within the 365-day limitations period.1

Assuming the truth of petitioner's assertions, he has provided a persuasive justification for the delay between the denial of his superior court petition and April 17, 2012, the date he concedes he finally received the order denying the petition, a period of 124 days. Petitioner's only justification for the delay following April 17, 2012, is the "confusion" caused by the disarray of his legal materials. Petitioner does not explain how the disarray confused him, why it caused him to file an unexhausted federal petition rather than a state supreme court petition (as he claims), or why—even if there were some persuasive explanation for the erroneous filing—his confusion caused a delay of 175 days between April 17th and the filing of the unexhausted federal petition. Petitioner has not provided the court with information from which the court can conclude that the delay between his receipt of the superior court's order and the filing of the state supreme court petition was reasonable. Even accepting petitioner's claim that staff wrongfully deprived him of the superior court order until April 17, 2012 and tolling the limitations period for the time between the filing of the superior court petition and petitioner's receipt of the order, the instant petition remains untimely by 118 days.2

Petitioner argues that the limitations period should be equitably tolled due to the misconduct of staff in withholding and disturbing his legal materials and his resulting confusion. For the same reasons discussed in the preceding paragraph, petitioner has not met the "high bar" required for equitable tolling; he has not adequately explained his delay following April 17, 2012. Petitioner has not provided the court with facts that would show his diligent pursuit of this case between that date and the filing of the first, unexhausted, federal petition (175 days) or between the denial of the supreme court petition and the filing of the instant petition (99 days). Nor has petitioner described how the disarray of his papers caused him such confusion, which might have persuaded the court that the alleged staff misconduct caused the delays. Accordingly, the petition should be dismissed as untimely.

III. Preiser and the Core of Habeas

Respondent also argues that the instant case must be brought under 42 U.S.C. § 1983 rather than as a petition for writ of habeas corpus. Because the petition must be dismissed as untimely, it is not necessary for the court to address this argument at this time.

IV. Order and Recommendation

For the foregoing reasons, it is hereby ORDERED that petitioner's request for leave to file a surreply (ECF No. 15) is denied.

Further, it is RECOMMENDED that:

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing § 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).