The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
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. Per the Order, filed on December 11, 2009, further briefing has been submitted with regard to the application of the triggering date of the AEDPA statute of limitations being the date the factual predicate of the claims was discovered. U.S.C. § 2244(d)(1)(D).*fn1
As previously set forth, petitioner, serving a 59-year-to-life sentence, challenges his 2005 conviction for attempted murder and possession of a firearm by a felon. Petitioner specifically was found to have "personally used a firearm" but was not found to have "personally and intentionally discharged a firearm ... which proximately caused great bodily injury to Clifton Whitehorn...." nor was he otherwise found to have "personally and intentionally discharged a firearm...." Supplemental Briefing, Exhibit A (court doc. 22-2, pp. 2, 5). The petition raises the following claims, largely based on newly discovered evidence: 1) ineffective assistance of trial counsel when counsel failed to interview Romeo Brown about his possible role in the shooting of Clifton Whitehorn; 2) ineffective assistance of appellate counsel for failing to investigate Brown's potential involvement in the Whitehorn shooting and for failing to impeach the victim Whitehorn with alleged evidence of his cocaine use and (in claim 2, petitioner also faulted appellate counsel for an incorrect statement in the appellate brief); 3) factual innocence. Petition, pp. 5-38.*fn2
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). As previously stated, if respondent is correct, then petitioner's application is time barred by either one*fn3 or eight days because the petition, file-stamped March 27, 2009, was filed, by application of the mailbox rule, on March 18, 2009, or March 25, 2009, but was due by March 17, 2009, for the reasons set forth in the Order, filed on December 11, 2009, incorporated by reference herein. This deadline, however, applies only if there is no later triggering date than March 13, 2007, the date upon which petitioner's conviction became final, 90 days after the December 15, 2006, denial of petitioner's petition for review in the California Supreme Court. Respondent's Lodged Document 2. Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). Based on that date, the statute commenced running on March 14, 2007, petitioner had until March 14, 2008, to file a timely federal petition, absent applicable tolling. However, because the time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment is pending shall not be counted toward any period of limitation under this subsection, 28 U.S.C. § 2244(d)(2), the statute, as previously set forth in more detail, was tolled from September 8, 2007, when petitioner filed his habeas petition in superior court, until the date of denial of his state supreme court petition, on September 10, 2008, that is, for 368 days. Respondent's Lodged Documents 3 & 8.*fn4 Under this calculation then, adding 368 days to March 14, 2008, petitioner's federal petition would have been due March 17, 2009, and at the earliest was filed as of March 18, 2009, or more likely March 25, 2009 (see discussion on the December 11, 2009, Order).
The court found little merit in petitioner's argument for equitable tolling or for finding a state-created impediment to filing his federal petition when he was placed in administrative segregation based on his own misconduct and was denied access to his legal property from December 16, 2008, to February 5, 2009, because any such denial of access does not explain why petitioner could not have filed his petition within the almost six weeks thereafter before the deadline elapsed. The court also did not reach the question both parties addressed regarding whether an actual innocence exception to the statute of limitations exists and, if so, whether petitioner met its requirements because the undersigned found that the appropriate date commencing the running of the AEDPA statute might well be the date upon which petitioner claims that the newly discovered factual predicate of his claims arose, pursuant to 28 U.S.C. § 2244(d)(1) (D) "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."
The newly discovered evidence on which petitioner relies is "the recently discovered information in Romeo Brown's statement." Petition, p. 39. It is this individual whom petitioner has long averred is the shooter in his case but he had no statement from Brown before a private investigator, Kenneth Addison, was hired by petitioner's mother on February 2, 2006. Petition, Exhibit J-K (court file doc. # 1-2, pp. 65-68.) 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 the 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 Mr. Addison on May 8, 2007, summarizing his interview with Romeo Brown, incarcerated at Kern Valley State Prison, who the investigator reports was convicted, on March 23, 2006, of voluntary manslaughter with the use of a firearm committed in 2004, for which Brown is serving a 21-year sentence. 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 person. Id. He indicated how embarrassed he was to be disarmed by the victim in front of his friends on the day of the shooting, May 16, 2004, and, apparently reluctantly, revealed that he had then gone home to get another gun, "an AK" and then returned to the location of the shooting incident, La Fresa Court. Id. When asked whether he was responsible for the shooting of the victim in petitioner's case, Brown stated that he ...