The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY
Petitioner James C. Bottomley ("Petitioner"), a state prisoner proceeding through counsel, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). On December 12, 2007, Respondent James E. Tilton ("Respondent") filed a Motion to Dismiss. On April 21, 2008, United States Magistrate Judge Nita L. Stormes issued a Report and Recommendation ("Report"), recommending that the Court grant the motion. On May 13, 2008, Petitioner filed objections to the Report. By order dated July 3, 2008 this court denied habeas relief. Petitioner now requests a Certificate of Appealability ("COA"). For the reasons discussed below, the Court DENIES Petitioner's COA request.
The facts of this case are not in dispute, and are taken from the Court's July 3, 2008 order denying habeas relief.
On August 18, 2000, a jury convicted Petitioner, a practicing attorney, of second-degree murder. Petitioner was sentenced to a term of 40-years-to-life.
On June 27, 2001, Petitioner appealed his conviction. He raised, inter alia, an ineffective assistance of counsel claim based on trial counsel's failure to show jurors Petitioner's journal entries. The appellate court affirmed the conviction and sentence, and Petitioner's subsequent petition for review with the California Supreme Court was denied. On February 23, 2004, the U.S. Supreme Court denied Petitioner's petition for writ of certiorari.
Meanwhile, Petitioner's counsel, Laura Gordon, assured Petitioner that she would prepare and file his state habeas petition raising a new ineffective assistance of counsel claim. The new claim was based on trial counsel's alleged failure to adequately investigate and introduce evidence that Petitioner was prescribed the wrong medication (i.e., Wellbutrin) for treatment of his bi-polar disorder. According to Petitioner, these facts would have assisted his heat-of-passion defense because the Wellbutrin aggravated Petitioner's mental state at the time of the murder (the "Wellbutrin Theory").
During a fifteen month period, Gordon continued to assure Petitioner that she was investigating and researching the basis for his new claim, and consulting with a medical expert and other attorneys about the habeas petition. Then on January 3, 2005, Gordon terminated their attorney-client relationship.
On February 23, 2005, Petitioner, proceeding pro se, filed a state habeas petition raising the new ineffective assistance of counsel claim based on the Wellbutrin Theory. On June 10, 2005, the superior court denied the petition.
On September 28, 2005, Petitioner filed a petition with the California Court of Appeal, which was denied on December 6, 2005. On January 30, 2006, Petitioner filed a petition with the California Supreme Court, which was summarily denied on October 11, 2006.
On October 11, 2007, Petitioner filed the federal Petition based on two claims. First, Petitioner raised the new ineffective assistance of counsel claim based on the Wellbutrin Theory. Second, Petitioner claimed a denial of due process arising from the California courts' summary denial, without hearings, of his new claim. On December 12, 2007, Respondent filed a motion to dismiss arguing that the Petition was barred by the statute of limitations. See 28 U.S.C. §2244(d). Petitioner's opposition argued that the limitations period should be equitably tolled, and that the claims raised therein were distinct from those raised on direct appeal.
On July 3, 2008, this Court issued an order adopting in its entirety Magistrate Judge Stormes' Report, granting the motion to dismiss, and denying the Petition. (See Doc. No. 15 [the "Order"].) In the Order, the Court held that equitable tolling was appropriate for the period during which Petitioner relied on Gordon (from February 23, 2004 until January 3, 2005). The Court, however, declined to allow equitable tolling after January 3rd, when Petitioner prepared the state petition himself. Furthermore, the Court found that Petitioner was aware of the underlying facts supporting the ineffective assistance of counsel claim based on the Wellbutrin theory by no later than April 21, 2004, not October 11, 2006 as Petitioner contended.
On August 6, 2008, Petitioner filed his request for COA. For the following reasons, the ...