The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's June 10, 2009, motion to dismiss on grounds that this action is barred by the statute of limitations. For the following reasons, further briefing is required.
This action is proceeding on the original petition file stamped March 27, 2009. Petitioner challenges his 2005 conviction for attempted murder and possession of a firearm by a felon. Petitioner is serving a sentence of 59 years to life.
The petition raises the following claims: 1) ineffective assistance of counsel; 2) ineffective assistance of appellate counsel; 3) factual innocence. Petitioner's claims are based on newly discovered evidence. In particular, petitioner alleges that in 2006 petitioner's mother hired private investigator Kenneth Addison to investigate petitioner's case. Attached to the petition is a letter to petitioner from Addison dated July 5, 2007. Petition, Exhibit M (court file doc. # 1-2, p. 72.) In this letter, Addison states that he is attaching "a couple of statements" that petitioner's mother asked him for. Id. Attached to the petition as Exhibits N and O are what appear to be the "statements" referred to by Addison in his letter.
The first statement is a report prepared by Addison on February 26, 2006, summarizing his interview with Quintarus Sardin. Petition, Exhibit N (court file doc. 1-2, pp. 74-75.) In this interview, Sardin stated that in October 2005 he was housed in the juvenile facility in Sacramento County. Id. During that time, he had open recreation time at the same time as Romeo Brown. Id. Brown admitted to Sardin that he was the shooter in petitioner's case. Id. Brown also told Sardin that he would have admitted his guilt at the time of petitioner's trial, but he (Brown) was the defendant in another homicide case at the time and did not want to fight two homicides at one time. Id. Sardin also said that Brown told another ward, Anthony Johnson, that he was responsible for the shooting. Id.
The second statement is a report prepared by Addison on May 8, 2007, summarizing his interview with Brown. Petition, Exhibit O (court file doc. 1-2, pp. 77-80.) During this interview, Brown stated that he had been involved with two separate incidents involving the shooting victim in petitioner's case. Id. During these incidents, the victim physically removed a firearm from Brown's presence. Id. When asked whether he was responsible for the shooting of the victim in petitioner's case, Brown stated that he would provide a statement if any time he received that crime would run concurrent with his current offense. Id.
The claims raised in the instant petition are primarily based on the statements set forth above. Petitioner argues that he is factually innocent based on these statements. He also argues that trial counsel was ineffective for failing to investigate Brown as the actual shooter. Petitioner argues that appellate counsel was ineffective for failing to raise an ineffective assistance of counsel claim based on trial counsel's failure to investigate Brown.
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.
Respondent argues that the statute of limitations runs from the date petitioner's conviction became final pursuant to 28 U.S.C. § 2244(d)(1)(A). If respondent is correct, then petitioner's ...