The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding with retained counsel, has filed a petition pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's August 8, 2008, motion to dismiss, which came on for hearing on April 2, 2009, with David A. Eldridge representing respondent and Randall Ensminger appearing for petitioner.*fn1 This case currently proceeds upon a second amended petition filed on April 18, 2008.*fn2 Petitioner pled guilty to two counts of murder (Cal. Penal Code § 187), admitted to use of firearm enhancements (Cal. Penal Code § 12022.5) and was sentenced in Sacramento County Superior Court, on March 18, 1994, to a term of 60 years to life, which included a total of a ten-year determinate sentence for the enhancements to be followed by two consecutive indeterminate 25-year-to-life terms. Second Amended Petition (SAP), p. 2; Motion to dismiss (MTD), p. 1, citing Lodged Doc. 1. Petitioner challenges his sentence upon the following grounds: 1) illegal sentence; 2) ineffective assistance of counsel; 3) conviction arising from unlawfully induced or involuntary guilty plea, made without understanding of the nature of the charge and the plea consequences. SAP, pp. 6-19.
Pending before the court is respondent's motion to dismiss the petition, alleging that the petition was not filed timely. The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1):
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.
As noted, petitioner was sentenced to a term of 60 years to life on his guilty plea and admission of sentencing enhancements on March 18, 1994. Respondent's Lodged Doc. 1.
Since petitioner did not appeal,*fn3 his conviction became final 60 days later, on May 17, 1994.*fn4 See Cal. R. Ct. 8.308(a) (formerly Cal. R. Ct. 30.1). As respondent observes, petitioner's conviction became final before April 24, 1996, the effective date of the AEDPA statute of limitations; therefore, petitioner's federal petition was due one year from the effective date of the implementation of the statutory limitation period, and, absent any applicable tolling, would have been due by April 24, 1997. MTD, p. 4,*fn5 citing, inter alia, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999); Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
There is no dispute as to when the nine post-conviction state court habeas petitions were filed: the first petition, filed in the Sacramento County Superior Court, was not filed until May 20, 2004, and was denied on June 23, 2004. The second petition was filed in the same court on July 28, 2004, and denied on September 17, 2004; on October 15, 2004, petitioner filed a motion for reconsideration in the Sacramento County Superior Court which was denied on Oct. 27, 2004; petitioner also filed a motion for reconsideration on Nov. 15, 2004, which was denied on the same day. The third petition was filed on Oct. 18, 2004, in the Third District Court of Appeal, and denied on Oct. 21, 2004. The fourth petition was filed in Sacramento County Superior Court on June 6, 2005, and denied on July 25, 2005. The fifth petition was filed on Aug. 22, 2005, in the Third District Court of Appeal, and denied on Aug. 25, 2005. The sixth habeas petition was filed in Sacramento County Superior Court on Nov. 7, 2005, and denied on Dec. 13, 2005. The seventh state court petition was also filed in the Sacramento County Superior Court on Feb. 8, 2006, and was denied on March 17, 2006; petitioner's April 11, 2006, motion for reconsideration in the same court was denied on May 4, 2006. The eighth petition was filed in the Third District Court of Appeal on July 31, 2006, and denied on Aug. 3, 2006. The ninth and final petition was filed in the California Supreme Court on Sept. 15, 2006, and denied on March 21, 2007. MTD, pp. 2-3, Lodged Docs. 2-25 ; SAP, pp. 18-19. The court will find that the instant action commenced on June 10, 2007, by application of the mailbox rule,*fn6 even though petitioner's initial pro se filing was an inapposite motion for relief from judgment. See Order, filed on June 25, 2007 (docket # 3).
28 U.S.C. § 2254(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 any period of limitation under this section. However, as respondent notes (MTD, p. 6), the filing of a state collateral action following expiration of the AEDPA limitations period cannot revive the limitations period or toll it under § 2254(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001). Thus, on the face of it, the instant filing due by April 24, 1997, but not filed until June 10, 2007, would appear to be untimely by some ten years. Although unnecessary on this showing, respondent makes an alternate argument as to why the state habeas petitions could not have tolled the AEDPA statute. MTD, p. 5. He contends that the first and sixth through ninth petitions were determined to be untimely in the state courts. The first and ninth petitions were denied by citation to, inter alia, In re Robbins, 18 Cal.4th 770, 780 [,77 Cal. Rptr. 153] (1998). Lodged Docs. 3, 25. The sixth and seventh petitions were found untimely filed by the Sacramento County Superior Court. Lodged Docs. 17, 19. Thus, as respondent argues, these petitions, having been expressly found to have been filed untimely, cannot have been "properly filed" pursuant to § 2244(d)(2). MTD, p. 5, citing Pace v. DiGuglielmo, 544 U.S. 408, 414, 417, 12 S.Ct. 1807, 1812, 1814 (2005) (holding "[w]hen a post-conviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)," expressly finding that a state court petition rejected as untimely is not "properly filed" under AEDPA statute tolling provisions). Respondent argues that while the eighth petition was denied without comment or citation (Lodged Doc. 23), it should not be presumed that the prior state court findings of untimeliness were thereby disregarded, citing Ylst v. Nunnemaker, 501 U.S. 797, 803-806, 111 S.Ct. 2590 (1991), for the proposition that the later reviewing courts did not silently disregard the last reasoned opinion that the claim was procedurally defective. Thus, it is appropriate to "look through" unexplained orders "to the last reasoned decision...." Id., at 804, 111 S.Ct. 2590.
Respondent is correct on the law in his alternate argument. Pace, supra, at 417, 125 S.Ct. at 1814 (state "time limits no matter their form, are 'filing' conditions" ); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) ("[b]ecause the California courts dismissed Bonner's petition as untimely, his petition was not 'properly filed' under AEDPA"). However, as noted, it is unnecessary to invoke the argument, given that, on the face of it, petitioner permitted the AEDPA statutory period to expire by more than seven years before even commencing the filing of his state court petitions.
Equitable Tolling/Delayed Trigger for Commencemnet of Limitations Period/Actual Innocence
Apparently anticipating the arguments for untimeliness, petitioner within the second amended petition, asserts that his petition includes a claim of factual innocence based on newly discovered evidence -- a statement by the co-defendant -- resulting in a miscarriage of justice and that he has been diligently pursuing state court relief since obtaining the evidence and is thus entitled to equitable tolling from the date of his first state court petition, filed on May 20, 2004.*fn7 In addition, petitioner avers that he did not learn of the defect in his sentence related to a psychological report by Dr. Shawn Johnston until he learned of his potential life sentence on November 13, 2003. Thus, he claims that the first factual predicate of his claim did not become known to him until November of 2003, the second factual predicate involved obtaining the June 13, 2004 statement of culpability and exoneration from the co-defendant; and the third factual predicate, learned some time prior to November 15, 2004, when he filed his motion for reconsideration, was petitioner's discovery of the sentencing judge's illegal sentence resulting from the judge's rejection of Dr. Johnston's psychological report of petitioner. SAP, 14-15. Therefore, petitioner, in addition to seeking equitable tolling, appears to seek a later trigger date for the commencement of the statutory limitation period under § 2244(d)(1)(D), in asserting that he was unaware of even the first factual predicate of his claims until November of 2003.
The court will analyze the above assertions below. However, prior to that analysis, it is necessary to emphasize that not every factual assertion, or dispute, will require an evidentiary hearing. The Supreme Court has recently opined on the standards for granting an evidentiary hearing in Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1939-1940 (2007), reversing Landrigan v. Schriro, 441 F.3d 638, 650 (9th Cir. 2006) (en banc). Schriro first described the familiar test for granting an evidentiary hearing: that if the factual allegations were to be proved, petitioner would be entitled to relief. See Alberni v. McDaniel, 458 F.3d 860, 873 (9th Cir. 2006).*fn8 These standards are easily applied to factual issues involving a dispositive procedural issue as well. That is, do petitioner's allegations, if proven, give rise to equitable tolling or a later commencement of the limitations period; if so, petitioner would be entitled to an evidentiary hearing.
However, in determining whether relief could be granted, the federal court must apply the AEDPA deferential standards to legal and factual questions necessarily reached by the state courts which might obviate the need for an evidentiary hearing. Schiro, 127 S.Ct. at 1939-40. If the state court had made factual findings on the issue at bar, no evidentiary hearing could be held unless petitioner's proffer would constitute clear and convincing evidence. Importantly, if the record refuted the applicant's allegations, i.e., petitioner was making allegations at odds with the established facts of the record, he would not be permitted an evidentiary hearing unless such new facts would clearly and convincingly rebut the record. Generally phrased allegations, or the failure to submit a proffer of available, specific proof will not clearly and convincingly rebut the record. Of course, if a lower state court is the court which issued a reasoned decision, the federal courts look through silent denials and assume the reasoning of the lower court is the reasoning of all courts. Medley v. Runnels, 506 F.3d 857, 862-863 (9th Cir. 2007), citing Ylst v. Nunnemaker, 501 U.S. 804-06, 111 S.Ct. 2590 (1991).
The following discussion demonstrates that the factual record in this case clearly refutes petitioner's latter day allegations, and an evidentiary hearing is not warranted.
The writ of error coram nobis filed by petitioner, on May 5, 1995, that was evidently rejected pending his use of the appropriate form (see footnote 3), clearly states that petitioner was sentenced to two consecutive terms of 25 years to life, enhanced by 10 years, "the aggregate term being 60 years to life affixed." Lodged Doc. 30 (p. 2). In his opposition, petitioner declares that he should be granted equitable tolling from and after the date of this "rejected appeal," which "was attempted to be filed before the statute of limitations even had begun to run" even though "he had nothing to do with the actual preparation" of the document, only signing it after a jailhouse lawyer had prepared it.*fn9 Petitioner's Declaration in Opp., ¶ 5. At oral argument, petitioner's counsel again maintained the 1995 petition was prepared by a jailhouse lawyer and petitioner forgot it had ever been done. Moreover, petitioner maintains that he was "only 18 at the time and was suffering from untreated schizophrenia, was in shock from [his] imprisonment and not fully understanding what had happened to [him]."*fn10 Ptnr's Dec. in Opp., ¶ 5. However, petitioner had multiple opportunities both before and after May of 1995 and prior to May of 2004, when he filed his first state court petition, to appreciate the magnitude of his sentence, beginning with the occasion on which he entered his change of plea on December 9, 1993 (Lodged Doc. 32, p. 5: 11-21),*fn11 and later at the time of his judgment and sentencing on March 18, 1994, before a different judge (Lodged Doc. 33, pp. 23-26).*fn12 As the undersigned noted at the hearing on this motion, the sentencing judge was vehement in expressing his desire for the sentence to be lengthy. Moreover, the record indicates that the judge told petitioner explicitly when sentencing him:
It's my desire that by the time you are eligible for parole I will be nothing more than what I hope is a warm feeling in the hearts and minds of my children and grandchildren.
Lodged Doc. 33, p. 24:23-26.
Should that sentiment have left even the slightest doubt as to the judge's intent in imposing petitioner's sentence, it would have been removed by his conclusion at the sentencing ...