ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his underlying conviction on the grounds that his March 31, 1995 plea of guilty to second degree murder in the Sacramento County Superior Court was invalid because it was based on the improper advice given him by his ineffective counsel and tainted by the trial court's failure to properly advise him. Before the court is respondent's motion to dismiss the petition on the ground that it was filed beyond the one-year statute of limitations. Petitioner has filed his opposition and both parties have filed replies.
On March 31, 1995, petitioner pled guilty to second degree murder and was sentenced to an indeterminate term of 19 years to life in state prison. (Resp't's Lod. Doc. 1, lodged December 16, 2008.) Petitioner did not appeal from the judgment of conviction.
On May 23, 2007, petitioner filed a petition for writ of habeas corpus with the Sacramento County Superior Court. (Lod. Doc. 2) On July 18, 2007, the petition was denied. (Lod. Doc. 3.)
On November 5, 2007, petitioner filed a habeas petition with the California Court of Appeal for the Third Appellate District. (Lod. Doc. 4.) The petition was denied on November 8, 2007. (Lod. Doc. 5.)
On December 10, 2007, petitioner filed a habeas petition with the California Supreme Court. (Lod. Doc. 6.) The petition was denied on June 11, 2008. (Lod. Doc. 7.)
On September 2, 2008, petitioner filed his federal habeas petition. Petitioner claims that his counsel was ineffective in advising petitioner to accept a plea bargain, that counsel mischaracterized and mislead petitioner about his parole eligibility, that counsel and the court failed to properly inform petitioner as to the elements of a second degree murder plea, that counsel failed to ensure that petitioner fully understood the plea bargain and its consequences, and that his counsel was ineffective in failing to request, and the court violated due process by failing to conduct, a hearing to determine his competency to enter his plea.
Respondent contends that petitioner's federal habeas petition was not filed within the applicable one-year statute of limitations and that petitioner did not exhaust the claims contained in his federal petition by presenting them to the California Supreme Court. As to the statute of limitations, respondent asserts that petitioner's judgment of conviction became final on May 30, 1995, which was when the 60-day time period for petitioner's filing of a state appeal expired. (MTD at 3.) Since the AEDPA was enacted on April 24, 1996, after petitioner's judgment of conviction became final, the statute of limitations for the filing of a federal habeas petition began to run on April 24, 1996, and expired on April 24, 1997. (Id.) According to respondent, petitioner's federal petition was filed more than eleven years later and is therefore untimely unless he is entitled to tolling of the statute of limitations. (Id.) Respondent contends that petitioner is not entitled to such tolling because his post-conviction collateral actions in state court were all filed long after the expiration of the statute of limitations for the filing of a federal petition. (Id.) In addition, respondent argues that both the Sacramento County Superior Court and California Supreme Court denied the habeas petitions filed by petitioner in those courts as untimely as indicated by their citation to In re Robbins, 18 Cal. 4th 770, 780 (1998). (Id. at 4.) Respondent asserts that because those state petitions were untimely, they were not properly filed and statutory tolling under 28 U.S.C. § 2244(d)(2) does not apply. (Id.)
Respondent also argues that petitioner has failed to exhaust his claims because the California Supreme Court denied the habeas petition filed in that court citing the decisions in In re Swain, 34 Cal. 2d 300, 304 (Cal. 1949) and People v. Duvall, 9 Cal. 4th 464, 474 (Cal. 1995). Respondent contends that the citation to those decisions indicates that the state petition was deficient and failed to present the claims with sufficient particularity. (MTD at 5.) Respondent argues that petitioner could have cured that deficiency but did not do so and therefore he has not fairly presented his claims to the California Supreme Court. Accordingly, respondent concludes that the exhaustion requirement has not been satisfied. (Id.) Although a failure to exhaust would in some instances suggest a dismissal without prejudice, respondent argues that here the statute of limitations bar would make such dismissal futile and that dismissal should, therefore, be with prejudice. (Id.)
Petitioner opposes the motion to dismiss, asserting that because he was unaware of the factual predicate underlying his habeas claims until he attended his parole hearing on April 2, 2007, the statute of limitations for the filing of a federal habeas petition did not begin to run until that date. (Opp'n at 2).*fn1 Petitioner contends that at his parole hearing in April of 2007, he first discovered that his trial counsel was ineffective and deficient and that petitioner had been prejudiced as a result. (Id. at 2.)*fn2 Petitioner contends that at his parole hearing "he learned his sentence was a[n] indeterminate life sentence and that he would not be granted parole as he believed he would be[.]" (Id. at 11.) According to petitioner he then acted diligently by filing his post-conviction petitions following the parole hearing in April of 2007. (Id. at 3.) Petitioner argues that there is no evidence that he failed to exercise due diligence in pursuing his claims and he notes that when he entered his guilty plea on the advice of counsel, he was an "18 year old minor" and lacking "common experience education or training[.]" (Id.)*fn3
Petitioner also challenges respondent's claims that he is not entitled to tolling of the statute of limitations, that he has procedurally defaulted, and that his claims are unexhausted. Lastly, petitioner contends that he is entitled to an evidentiary hearing on the issue of whether there is good ...