IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 13, 2009
ERIC CHARLES K'NAPP, PETITIONER,
WARDEN OF SALINAS VALLEY STATE PRISON, RESPONDENT.
Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254.*fn1 In 1993, petitioner was sentenced to 98 years in state prison following his conviction on multiple counts of rape, oral copulation, digital penetration, and sexual battery, as well as one count each of burglary and assault with a deadly weapon, all in violation of state law. Petitioner's commitment offenses involved two victims. In the instant petition, filed in March 2008, petitioner challenges the 1993 conviction and the sentence imposed thereon. The petition contains six claims: (1) newly discovered evidence of actual innocence as to one of the victims; (2) ineffective assistance of counsel at trial, sentencing and on appeal; (3) prosecutorial misconduct at trial; (4) jury prejudice; (5) cumulative errors; and (6) the sentence imposed is arbitrary, capricious and vindictive.
Respondent has filed a motion to dismiss claims two through six of the petition as barred by the one-year statute of limitations contained in 28 U.S.C. § 2244(d).*fn2 Petitioner has filed an opposition to the motion in which he contends, inter alia, that he is entitled to equitable tolling of the limitations period and that all of his claims are based, at least to some extent, on various pieces of newly discovered evidence. Respondent has not filed a reply brief. After review of the record, and good cause appearing, respondent will be directed to do so.
In accordance with the above, IT IS HEREBY ORDERED that within thirty days from the date of this order respondent shall file and serve a reply brief.