FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, age 17 at the time of the crime, challenges his conviction of first degree murder with a special circumstance allegation that the murder was committed while he was engaged in, or was an accomplice in, the commission of carjacking, and of the separate crime of carjacking. Two personal use of a firearm enhancements were found not true. Plaintiff was sentenced to life without the possibility of parole. This was his first criminal conviction.
On August 17, 2009, respondent filed a motion to dismiss. After being granted leave to file a late opposition, petitioner filed an opposition to the motion, and respondent has filed a reply. (Docket Nos. 32 & 37.)
Upon review of the motion and the documents in support, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
Petitioner was convicted on February 26, 1998. On February 21, 2001, the California Court of Appeal held that the trial court failed to exercise its discretion to reduce petitioner's sentence from life imprisonment without possibility of parole to a term of 25 years to life. (Case No. A084777). The state court vacated the sentence and remanded the matter for resentencing. The conviction was confirmed in all other respects.
On March 30, 2001, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. The California Supreme Court, sitting en banc, denied the petition on June 13, 2001, without comment. (Docket No. 11-3, Ex. A.)
On April 2, 2001, petitioner filed a petition for review in case number A084777. On June 13, 2001, the California Supreme Court, en banc, issued an order denying the petition without comment. (Docket No. 11-3, Ex. B.)
On January 3, 2002, the state trial court re-sentenced petitioner to prison for the indeterminate term of life without possibility of parole on the murder count, and again stayed sentence on the remaining count. Petitioner filed a timely appeal and, on December 11, 2002, the California Court of Appeal affirmed the sentence in case number A097806.
On January 21, 2003, petitioner filed a petition for review in case number A097806. On February 25, 2003, the California Supreme Court, sitting en banc, denied the petition without comment. (Docket No. 11-3, Ex. C.)
On February 24, 2004, petitioner, through counsel, filed the original petition for writ of habeas corpus in the United States District Court for the Northern District of California. On April 12, 2004, the district court granted petitioner's motion to hold the petition in abeyance. However, the district court expressly ordered petitioner to file his state exhaustion petition within 30 days from April 12, 2004, and warned petitioner that failure to timely file his state petition would result in this action proceeding on the original petition. (Docket No. 9.)
On December 6, 2007, petitioner filed a petition for writ of habeas corpus in the California Supreme Court pleading unexhausted claims. (Docket No. 11-4, Ex. R.) On June 11, 2008, the California Supreme Court denied the petition, citing In re Clark (1993) 5 Cal.4th 750; In re Robbins (1998) 18 Cal.4th 770, 780. (Docket No. 11-4, Ex. R.) On July 23, 2008, the California Supreme Court sent notice to counsel that the petition had been denied.
On September 11, 2008, petitioner filed an amended petition ("AP") in federal court. On December 10, 2008, petitioner moved to change venue. On February 3, 2009, the motion to change venue was granted and the action was transferred to this court.
RESPONDENT'S MOTION TO DISMISS
Respondent asserts that the amended petition should be stricken because petitioner failed to comply with the district court's April 12, 2004 order requiring petitioner to file his state exhaustion petition within 30 days from the date of that order, and failed to comply with the thirty day time limit required under Rhines v. Weber, 544 U.S. 269, 277 (2005). In the alternative, respondent argues that the novel claims 2, 3, 6, 8, 16 and one unnumbered claim involving cumulative prejudice from ineffective assistance of counsel on the amended petition must be dismissed as they were not exhausted until after the one-year statute of limitations and do not relate back to any claim alleged in the original petition. Respondent argues that the Supreme Court's decision in Mayle v. Felix, 545 U.S. 644 (2005), mandates dismissal of the new claims at issue.
Petitioner argues that application of the statute of limitations to him will result, and has resulted, in a miscarriage of justice because petitioner is actually innocent of first-degree murder. Schlup v. Deleo, 513 U.S. 298 (1995). Petitioner presents a detailed discussion of the evidence that was presented at trial and the new evidence that allegedly demonstrates his innocence, and contends he diligently pursued his rights but extraordinary obstacles, including the ineffective assistance of trial counsel and financial hardship, prevented him from exhausting his state court remedies in a timely fashion. Petitioner further contends he is entitled to equitable tolling for the over three year period it took to exhaust his state court remedies. Petitioner contends that extraordinary circumstances beyond his control made it impossible to file a timely amended petition during that time. Petitioner cites his age at the time of the crime (17), the failure of his defense counsel to put on any defense, his inability to afford the hiring of an investigator or an expert, and the need to conduct sufficient investigation to exhaust state court remedies properly.
Finally, petitioner argues that all the claims in his amended petition relate back to the original petition. Petitioner grounds this argument on his view of the "common core of operative facts" and the assertion that all of his new claims are merely new legal theories based on the same factual evidence that comprises the common core of operative facts underlying the claims alleged in the original petition.
I. The AEDPA Statute of Limitations
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted. The AEDPA amended 28 U.S.C. § 2244 by adding the following provision:
(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 ...