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, who will be referred to in this order as C and S.*fn2 Petitioner's claims also refer to charges filed in connection with a third alleged victim , who will be referred to as B in this order.*fn3 The latter charges were eventually dropped. 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 the convictions involving C; (2) ineffective assistance of counsel at trial, sentencing and on appeal; (3) prosecutorial misconduct at trial; (4) jury prejudice; (5) cumulative errors; and (6) arbitrary, capricious and vindictive sentencing. Each of the claims has multiple contentions. See Petition at 53-68.
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).*fn4 Petitioner opposes the motion.*fn5
Section 2244(d)(1) provides:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(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). 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).
Respondent's motion is predicated on the assumption that the timeliness of claims two through six is governed solely and exclusively by 28 U.S.C. § 2244(d)(1)(A). See Motion to Dismiss, filed July 24, 2008, at 5. However, several of the contentions in each of claims two through six are predicated on what petitioner claims is evidence that was "newly discovered" at three separate points in time: June 1997, October 2001, and some time in 2004.55-68.*fn6 See Petition, at 41-48 and 55-68.*fn7 Petitioner refers to this newly discovered evidence in his opposition to the motion to dismiss. See Opposition by Petitioner to Respondent's Amended Motion to Dismiss, filed September 26, 2008, at 16-17. None of these contentions have been analyzed with reference to 28 U.S.C. § 2244(d)(1)(D).*fn8
For purposes of the statute of limitations analysis with respect to those aspects of petitioner's second through sixth claims that are not predicated on any allegation of newly discovered evidence, the relevant chronology of this case is as follows:
1. Petitioner was convicted on August 30, 1993.
2. On October 10, 1995, the California Court of Appeal for the Third Appellate District ...