Petitioner is a state prisoner 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 By order filed February 26, 2009, this court granted in part and denied in part respondent's motion to dismiss claims two through six of the petition. Specifically, the court dismissed as time-barred all contentions raised in Claims 2 through 6 of the petition except Claim 2(c)(2),(4),(11),(13),(14); Claim 3(c)(1), (2), (3), (4), (7), and (10); Claim 4(c)(3), (8); Claim 5(c)(1), (2), (7), (11), (13); and Claim 6(c)(7). In the same order, the court directed respondent to file an answer to Claim 1 and the foregoing contentions.
On March 23, 2009, petitioner filed a request for reconsideration of Claim 2(c)(3) and (6), Claim 3(c)(5), (6) and (9); Claim 4(c)(4), (7) and (13), Claim 5(c)(4) and Claim 6(c)(4). Petitioner contends that all of these claims are supported by the allegations of Claim 1 of the petition, in which petitioner claims that newly discovered evidence shows that he is actually innocent of some of the crimes against C and therefore that those claims are not time-barred.
In Claim 2(c)(3) and (6), petitioner alleges that he received constitutionally ineffective assistance of counsel when his trial counsel failed to reasonably investigate and cross-examine C and thereby to discover that petitioner was actually innocent of certain of the crimes against her. The newly discovered evidence that provides the foundation for Claim 1 is C's recantation of her trial testimony that petitioner had digitally penetrated her. Petitioner's claim that counsel was ineffective in failing to adequately investigate and cross-examine C does not arise from her recantation; it arises from counsel's performance prior to and at trial.
In Claim 3(c)(5), (6) and (9), petitioner alleges, inter alia, that the prosecution coached C on her trial testimony, "manipulated" C into giving false testimony against petitioner, and committed misconduct during closing argument. Claim 4(c)(13) is virtually identical to claim 3(c)(9). These claims arise from the prosecutor's conduct at trial, not the newly discovered evidence upon which Claim 1 is grounded.
In Claim 4(c)(4), petitioner claims that the jury was prejudiced by hearing the charges resulting from the crimes against S "in conjunction with the inflammatory but now admittedly false testimony" concerning three counts of crimes against C. Petition, filed March 21, 2008, at 62. Claim 4(c)(7) and 5(c)(4) are similar, alleging prejudice from the joinder of the charges resulting from the crimes against C with the charges resulting from the crimes against S, and the trial court's refusal to sever the two cases. Again, all three of these contentions arise from joinder of the two sets of charges, and not from the newly discovered evidence that grounds Claim 1.
Finally, in Claim 6(c)(4) petitioner challenges the sentence imposed on the three counts at issue in Claim 1. Specifically, petitioner claims that the trial court imposed multiple sentences totaling 13 years on these three counts even though the events underlying the charges were a "single transaction of indivisible conduct." Petition, at 68. This claim arose at the time of sentencing, not when C recanted.*fn3
For all of the foregoing reasons, none of the claims cited by petitioner in his request for reconsideration arose from the time of C's recantation. Petitioner's request for reconsideration of this court's February 26, 2009 order will be denied.
On March 4, 2009, petitioner filed a request for service of respondent's reply brief, filed February 11, 2009 in support of the motion to dismiss. On March 23, 2009, petitioner filed a notice of change of address. On April 9, 2009, respondent filed an answer. The answer was served on petitioner at the address on his March 23, 2009 notice of change of address. On April 27, 2009, petitioner filed a notice in which he alleges that he has received neither the reply brief nor the answer. Good cause appearing, respondent will be directed to file a response to petitioner's March 4, 2009 request and petitioner's April 27, 2009 notice.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's March 23, 2009 request for reconsideration is denied; and
2. Within ten days from the date of this order respondent shall file and serve a response to petitioner's March 4, 2009 request and ...