The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On July 18, 2008, the magistrate judge filed findings and recommendations which found that the petition was filed beyond the one-year limitation period and that petitioner had not demonstrated a basis for either statutory or equitable tolling. Accordingly, the magistrate judge concluded that the petition must be dismissed as untimely. The findings and recommendations notified the parties that any objections were to be filed within fifteen days. Petitioner has filed objections, which the court has reviewed in detail. For the reasons set forth in the findings and recommendations and as set forth below, the objections are adopted in full. However, the court addresses two arguments that petitioner has made in his objections.
First, petitioner argues that if the limitations period began to run on the date he discovered evidence supporting his claim, then this action is timely.*fn1 See 28 U.S.C. § 2244(d)(1)(D). Second, petitioner argues that even if the petition is untimely, the court should reach the merits to avoid a fundamental miscarriage of justice.*fn2 See Schlup v. Delo, 513 U.S. 298, 314-15, 326-27 (1995). For the reasons explained below, both arguments fail.
I. 28 U.S.C. § 2244(d)(1)(D)
As noted, petitioner argues that the limitations period runs from the date he discovered evidence supporting his claim that the prosecution presented testimony it knew to be false. For the reasons explained, the court finds that the petition is untimely.
Under section 2244(d)(1)(D), the one-year limitations period begins to run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Petitioner has submitted a document dated May 20, 2004, signed by Parole Agent Mychael Pierce in which Pierce outlines a version of events that differed from that which was proved at trial. Pet'r Objs., Exh. B. Petitioner also submits the affidavit of his brother, Scott Johnston, stating that while doing yard work for Pierce in early May of 2004, Pierce told him that he believed a key witness at petitioner's trial had lied about certain details of the battery.*fn3 Objs., Exh. C at 2. Petitioner seems to assert that he became aware of this evidence on April 1, 2005. Objs., at 3-4. However, the court does not accept April 1, 2005, as the date petitioner knew, or should have known through the exercise of diligence, of the factual basis of his claims. Significantly, Pierce did not share this information with someone who apparently was a stranger to the petitioner. He told petitioner's brother. There is no evidence that the brothers were estranged or that petitioner's brother attempted to conceal Pierce's disclosure from the petitioner. Thus, the court accepts May 20, 2004, as the date petitioner's brother learned of the information and finds that the federal petition is untimely under section 2244(d)(1)(D).*fn4 One year from May 20, 2004, is Saturday, May 21, 2005. Since the court was not open that day, petitioner had until Monday, 23, 2005, to file his federal habeas petition. Fed. R. Civ. P. 6(a)(3). The magistrate judge found, and petitioner agrees, that he did not file his first state post-conviction motion until January 24, 2006. Findings and Recommendations at 2; Objs. at 4. Thus, petitioner's first state post-conviction motion was filed 247 days after the federal limitations period expired. When a petitioner commences the process of seeking state post-conviction relief after the federal limitations period expires, the state court applications do not toll the limitations period. Fergusun v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Therefore, petitioner has not demonstrated that his federal petition is timely under 28 U.S.C. § 2244(d)(1)(D).
II. Fundamental Miscarriage of Justice Argument
Petitioner argues that even if he filed his petition late, the court should reach the merits in order to avoid a fundamental miscarriage of justice. Pet'r Opp'n to Resp.'s Mot. to Dism., at 8-9; Objs. at 5-11. The argument petitioner makes ordinarily is applied where a petitioner has defaulted a state's procedural rules such that a federal court is barred from reaching the merits of his claims on habeas corpus. Schlupv. Delo, 513 U.S. at 315; House v. Bell, 547 U.S. 518, 521 (2006); Carriger v. Stewart, 32 F.3d 463, 477 (9th Cir. 1997). However, the Ninth Circuit has applied the fundamental miscarriage of justice rule in the context of untimely federal habeas petitions where neither statutory nor equitable tolling saved the petition. Johnson v. Knowles, 541 F.3d 933, 836-37 (9th Cir. 2008); Majoy v. Roe, 296 F.3d 770, 775-76 (9th Cir. 2002). In order for the court to overlook the untimeliness of the petition and reach the merits, petitioner must demonstrate "that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup, 513 U.S. at 327. This standard can be satisfied only when a petitioner "support[s] his allegations of constitutional error with new reliable evidence . . . that was not presented at trial." Id. at 324. However, "the habeas court's analysis is not limited to such evidence." House, 547 U.S. at 537. The court must consider "all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial." Id. at 538. Based on all the evidence, the court must not "make an independent factual determination about what likely occurred, but rather  assess the likely impact of the evidence on reasonable jurors." Id. With these standards in mind, the court turns to the petitioner's argument.
The starting point of the analysis is the crimes of which petitioner was convicted, i.e., battery with serious bodily injury and assault with intent to inflict great bodily injury. See Cal. Penal Code §§ 242, 243(d), 245(a)(1). With respect to the battery, the state had to prove that petitioner used some willful, unlawful force against the victim and that force caused a "significant or substantial physical injury." See People v. Escobar, 12 Cal.Rptr.2d 586,589 (Cal. 1992); People v. Hawkins, 19 Cal.Rptr.2d 434, 435 (Cal. 1993). With respect to the assault charge, the state had to prove that the petitioner attempted to commit a violent injury on another, had the present ability to do so, and that it was more probable than not that the force would result in great bodily injury. Cal. Penal Code §§ 240, 245(a)(1); People v. Russell, 28 Cal.Rptr. 862, 870-71 (Cal. App. 2005). The appellate court summarized the trial evidence as follows:
On November 10, 2001, defendant struck fellow Tehama County Jail inmate Basilio Mercado Bagorio, Jr., in the face while Bagorio was speaking to his wife on the dayroom telephone. According to Bagorio, at that time he told his wife "I think Brian [defendant] hit me." At trial, Bagorio testified that he was "blind-sided" and did not know who hit him. Bagorio's jaw was broken in two places and wired shut for six weeks.
According to Bagorio's wife, during the telephone call she heard her husband say, "I wasn't talking shit." He told her he could not say who broke his jaw. He then told her "Brian" broke his jaw.
Defendant testified he was doing his job cleaning up the dayroom when he saw a fight. He tried to clean up the blood and it stained his clothing.
Petition, Exh. 4, at 4. Petitioner now submits a written statement by Parole Agent Mychael Pierce, who testified at petitioner's trial. Objs., Exh. A. In that statement, Pierce explains that after petitioner's trial a parolee, who was not involved in petitioner's case at all and who was not under Pierce's supervision at the time of petitioner's trial, said that he witnessed the events giving rise to the charges against ...