ORDER

KENDALL J. NEWMAN, Magistrate Judge.

I. Introduction

Petitioner is a state prisoner, proceeding pro se, with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). On August 23, 2017, respondent filed a motion to dismiss this action on the grounds that it was filed beyond the one-year statute of limitations. Petitioner did not file an opposition to the motion, and on October 10, 2017, he was ordered to show cause within thirty days why his failure to file an opposition should not be deemed a waiver of any opposition to the granting of the motion. Thirty days have now passed, and petitioner has not filed a response to the order to show cause or filed an opposition to the motion to dismiss. As set forth below, respondent's motion to dismiss is granted.

II. Legal Standards

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if 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. . . ." Id. The Court of Appeals for the Ninth Circuit has referred to a respondent's motion to dismiss as a request for the court to dismiss under Rule 4 of the Rules Governing § 2254 Cases. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (1991). Accordingly, the court reviews respondent's motion to dismiss pursuant to its authority under Rule 4.

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted. Section 2244(d)(1) of Title 8 of the United States Code provides:

28 U.S.C. § 2244(d)(1).

Section 2244(d)(2) provides that "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 shall not be counted toward" the limitations period. 28 U.S.C. § 2244(d)(2). Generally, this means that the statute of limitations is tolled during the time after a state habeas petition has been filed, but before a decision has been rendered. Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir. 2012). However, "a California habeas petitioner who unreasonably delays in filing a state habeas petition is not entitled to the benefit of statutory tolling during the gap or interval preceding the filing." Id. at 781 (citing Carey v. Saffold, 536 U.S. 214, 225-27 (2002)). Furthermore, the AEDPA "statute of limitations is not tolled from the time a final decision is issued on direct state appeal and the time the first state collateral challenge is filed because there is no case `pending' during that interval." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), overruled on other grounds by Carey, 536 U.S. at 214. In Carey, the United States Supreme Court held that the limitation period is statutorily tolled during one complete round of state post-conviction review, as long as such review is sought within the state's time frame for seeking such review. Id., 536 U.S. at 220, 222-23.

State habeas petitions filed after the one-year statute of limitations has expired do not revive the statute of limitations and have no tolling effect. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).

III. Chronology

For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:

2. On May 2, 2014, under a written plea agreement, petitioner entered a no contest plea to second-degree robbery, the original charges were dismissed, and petitioner was granted probation in case No. CRF13-2401. (ECF Nos. 20 at 1-2; 20-1 at 86-87; 20-2 at 40-47.)

3. On July 9, 2014, petitioner filed a motion to withdraw his plea. (ECF No. 20-1 at 90-96.) On August 15, 2014, during a hearing, petitioner's motion was denied. (ECF Nos. 20-1 at 129-30; 20-2 at 76.)

4. On August 15, 2014, after denying leave to withdraw the plea, the trial court suspended imposition of sentence, and granted petitioner three years of formal probation, subject to various terms and conditions. (ECF No. 20-1 at 131-32; 20-2 at 76-85.) Judgment was entered on August 15, 2014. (ECF No. 20-1 at 131.)

5. Petitioner did not file an appeal as to the August 15, 2014 judgment.2

6. Over seven months later, on April 10, 2015, in both case Nos. CRF13-2401 and CRF14-1739, petitioner admitted to violating probation by: failing to report to the probation officer; failing to comply with substance abuse counseling terms; submitting urine specimen on January 5, 2015, which tested positive for the presence of amphetamine/methamphetamine; and possessing drug paraphernalia on or about March 31, 2015. (ECF No. 20-1 at 180-81; 190-91.) Petitioner was committed to custody, and both matters set for sentencing. (ECF No. 20-1 at 192.)

7. On June 22, 2015, the trial court revoked petitioner's probation and imposed a total five year prison sentence for both case Nos. CRF13-2401 and CRF14-1739.3 (ECF No. 20-1 at 215-18.) Judgment was entered on July 7, 2015. (ECF No. 20-1 at 218-19.)

8. On August 6, 2015, petitioner filed an appeal. (ECF No. 20-1 at 220.) Petitioner's attorney filed a request for review under People v. Wende, 25 Cal.3d 436 (1979). (ECF No. 20-3.)

9. On May 23, 2016, the California Court of Appeals affirmed the judgment. (ECF No. 20-4.)

10. On June 6, 2016,4 petitioner filed a petition for writ of habeas corpus in the Sutter County Superior Court. (ECF No. 20-5 at 2-62.) On June 28, 2016, the superior court denied the petition, marking "No Prima Facie Case," citing Ex parte Swain, 34 Cal.2d 300, 303-04 (1949); and "Appellate Issues," citing In re Clark, 5 Cal.4th 750, 765 (citing In re Dixon, 41 Cal.2d 756, 759 (1953).). (ECF No. 20-6 at 2.)

11. On August 9, 2016, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (ECF No. 20-7 at 2-63.) On September 2, 2016, the superior court denied the petition without comment. (ECF No. 20-8.)

12. On September 20, 2016, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (ECF No. 20-9.) On November 30, 2016, the California Supreme Court denied the petition without comment. (LD 10.)

13. On January 14, 2017,5 petitioner constructively filed the instant federal petition. See Rule 3(d) of the Federal Rules Governing Section 2254 Cases. In his petition, he alleges insufficient evidence to support the robbery conviction; ineffective assistance of trial and appellate counsel for failing to challenge such insufficient evidence, and prosecutorial misconduct based on amending the charges to second degree robbery, which petitioner claims is not supported by the evidence. (ECF No. 9 at 4.)

IV. Statutory Tolling6

Under 28 § 2244(d)(1)(A), the limitations period begins running on the date that petitioner's direct review became final or the date of the expiration of the time for seeking such review. Id. In this case, petitioner did not appeal the operative judgment and probation grant issued on August 15, 2014. See People v. Mazurette, 24 Cal.4th 789, 792, 102 Cal.Rptr.2d 555 (2001) (an order granting probation is a final, appealable judgment).7 Accordingly, his conviction became final sixty days later on October 14, 2014. Cal. Rules of Court 8.308(a); Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006). The AEDPA statute of limitations began to run the following day, on October 15, 2014. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Absent tolling, petitioner's last day to file his federal petition was on October 15, 2015.

Petitioner is not entitled to tolling for any of the 2016 filings in state court because none of them were filed before the federal limitations period expired on October 15, 2015. As set forth above, state habeas petitions filed after the one-year statute of limitations has expired cannot revive the statute of limitations and have no tolling effect. Because petitioner filed his petition on January 14, 2017, over a year after the limitations period expired, the petition is untimely and must be dismissed.

V. Equitable Tolling

"Equitable tolling may be available `[w]hen external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim.'" McMonagle v. Meyer, 802 F.3d 1093, 1099 (9th Cir. 2015) (quoting Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999)). "A petitioner who seeks equitable tolling of AEDPA's one-year filing deadline must show that (1) some `extraordinary circumstance' prevented him from filing on time, and (2) he has diligently pursued his rights." Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)).

"The threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citation omitted).

Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.) (internal citation omitted), cert. denied, 130 S.Ct. 244 (2009); see also Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003) (petitioner must show that the external force caused the untimeliness). It is petitioner's burden to demonstrate that he is entitled to equitable tolling. Espinoza-Matthews v. People of the State of California, 432 F.3d 1021, 1026 (9th Cir. 2005).

Here, petitioner does not specifically ask for, and provides no basis for, the application of equitable tolling. Petitioner makes no factual arguments in his petition that would support a claim for equitable tolling and did not file an opposition to respondent's motion. In addition, he has not demonstrated that he has been pursuing his rights diligently. Therefore, the undersigned finds that petitioner has not met his burden of demonstrating the existence of grounds for equitable tolling.

VI. Conclusion

1. Respondent's motion to dismiss (ECF No. 20) is granted,

2. This action is dismissed; and

3. The undersigned declines to issue a certificate of appealability under 28 U.S.C. § 2253.