The opinion of the court was delivered by: Jeffrey S. White United States District Judge
ORDER GRANTING MOTION TO DISMISS
This matter comes before the Court on consideration of Respondent Larry Scribner's ("Respondent") motion to dismiss the petition for writ of habeas corpus filed by Petitioner Larry Scribner ("Petitioner"), as well as on consideration of Petitioner's motion to compel. Having considered the motions, the oppositions thereto, and relevant legal authority, the Court GRANTS Respondent's motion to dismiss and DENIES Petitioner's motion to compel.
On January 6, 2006, Petitioner was sentenced to five years in prison. Petitioner did not pursue a direct appeal in state court. On August 14, 2006, Petitioner filed a habeas petition in Contra Costa Superior Court. (Ex. 1 attached to Mot. to Dismiss.) On September 11, 2006, the Superior Court denied the petition without prejudice based on Petitioner's failure to provide the required documents. (Ex. 2 attached to Mot. to Dismiss.) On November 7, 2006, Petitioner filed another habeas petition in Contra Costa Superior Court. (Ex. 3 attached to Mot. to Dismiss.) On December 20, 2006, the Superior Court denied the petition. (Ex. 4 attached to Mot. to Dismiss.)
On March 12, 2007, Petitioner filed a habeas petition in the California Court of Appeal. (Ex. 5 attached to Mot. to Dismiss.) On March 21, 2007, the appellate court denied the petition. (Ex. 6 attached to Mot. to Dismiss.) On June 15, 2007, Petitioner filed a habeas petition in the California Supreme Court. (Ex. 7 attached to Mot. to Dismiss.) On December 19, 2007, the California Supreme Court denied the petition. (Ex. 8 attached to Mot. to Dismiss.) Petitioner filed his federal habeas petition in this Court on May 15, 2008. Respondent now moves to dismiss Petitioner's petition as untimely. The Court shall address additional facts pertinent to these motions in its analysis.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a petitioner seeking federal habeas relief must file his or her petition within a one year statute of limitations period. This one year limitations period runs from: the latest of (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;... (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A), (D).*fn1
AEDPA also provides, however, that "[t]he 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 any period of limitation...." Id. § 2244(d)(2). "The time that an application for state post-conviction review is'pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing a notice of appeal, provided that the filing of the notice of appeal is timely under state law."
Evans v. Chavis, 546 U.S. 189, 126 S.Ct. 846, 849 (2006) (citing Carey v. Saffold, 536 U.S. 214 (2002)) (emphasis in original). Under California law, "the equivalent of a notice of appeal [for collateral review] is timely if filed within a'reasonable time.'" Id. (quoting In re Harris, Cal. 4th 813, 828, n.7 5 (1993).) Thus, to evaluate a statute of limitations defense and to evaluate whether time should be tolled, a federal habeas court must determine whether the time period that has elapsed between an adverse determination and the filing of an appeal is reasonable. Id., 126 S.Ct. at 850.
B. Respondent's Motion to Dismiss
1. When the Statute of Limitations Began to Run
Respondent initially argued that pursuant to 28 U.S.C. § 2244(d)(1)(A), the statute of limitations began to run sixty days after the Petitioner was sentenced, which is when his time to file a notice of appeal expired. Pursuant to 28 U.S.C. § 2244(d)(1)(D), if it is the latest date, the statute of limitations begins to run on the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. Petitioner counters the statute of limitations started accruing later because he argues that he did not discover the factual predicate of his claims until he received a letter from trial counsel dated March 22, 2006 and a declaration from the investigator, John McCarty, signed on July 25, 2006. (Opp. to Mot. to Dismiss at 4.) Petitioner argues that the letter from counsel was received "somewhat later than that by petitioner," but does not provide any indication of when that was. (Id.) In his petition, Petitioner brings a claim for ineffective assistance of counsel for advising him to plead guilty when his counsel knew at the time of the plea that the victim had admitted to McCarty that she lied at the preliminary hearing. Petitioner argues that in his letter, his trial counsel contradicted earlier statements he had made and implied that he had received the information from McCarty regarding the victim's admission before the plea hearing. (Opp. to Mot. to Dismiss at 6.) According to Petitioner, in his declaration, McCarty states that he had advised trial counsel of the victim's admission before the plea hearing. (Id. at 5.)
Petitioner simply states that he had little control over trial counsel and McCarty. (Id. at 6.) Petitioner did not provide a copy of trial counsel's letter or of McCarty's declaration for the Court to review. Nor did Petitioner describe what efforts he made to interview McCarty or explain why, through due diligence, he could not have discovered the facts contained in his declaration sooner. It is the Petitioner's knowledge of the facts underlying his claim, not the evidentiary support of his claim, that starts the running of the statute of limitations. See Flanagan v. Johnson, 154 F. 3d 196, 199 (5th Cir. 1998) (rejecting the petitioner's argument that an affidavit formed the factual predicate of his claim and noting that the petitioner was confusing his knowledge of the factual predicate of his claim with the time for gathering evidence in support of that claim); see also Weaver v. Alameida, 225 Fed. Appx. 598, 599 (9th Cir. 2007) (factual predicate was discovered when counsel first interviewed a witness, not when the witness signed a declaration); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2001) (time runs from when evidence could have been discovered through diligent inquiry, not when it was actually discovered or its significance realized). The Court finds that Petitioner has not demonstrated that July 25, 2006 is earliest date he could have discovered through the exercise of due diligence the factual predicate of his ineffective ...