The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding with counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the second amended petition filed May 21, 2010. Petitioner challenges his 1982 conviction for first degree murder. The petition raises one claim: petitioner's plea was involuntary due to mental incompetence.
Pending before the court is respondent's June 22, 2010 motion to dismiss on grounds that this action is barred by the statute of limitations. After carefully considering the record, the undersigned recommends that respondent's motion be granted.
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.
On February 10, 1982, petitioner plead guilty to first degree murder. He did not file an appeal. The instant action, filed February 10, 2010, is not timely. See 28 U.S.C. § 2244(d)(1)(A).
In the opposition, petitioner suggests that the statute of limitations runs from a later date pursuant to § 2244(d)(1)(D). Petitioner argues that he had no knowledge of his mental incompetence at the time he plead guilty until he was seen and diagnosed by Dr. Terrell on November 17, 2006. (See Dkt. No. 11, at 201-232.) Dr. Terrell found that petitioner was mentally incompetent to enter a plea bargain and to stand trial. (Id.) Petitioner appears to argue that, pursuant to § 2244(d)(1)(D), the statute of limitations runs from the date Dr. Terrell concluded that he was not competent to plead guilty.
Generally, it is not knowledge of some facts pertinent to a claim that constitutes discovery of a factual predicate within the meaning of § 2244(d)(1)(D); rather, it is knowledge of facts constituting reasonable grounds for asserting all elements of a claim in good faith. Hasan v. Galaza, 254 F.3d 1150, 1154-55 (9th Cir. 2001). The time begins to run when the petitioner knows, or through diligence could discover, the important facts, and not when the petitioner recognizes their legal significance. It is not necessary for a petitioner to understand the legal significance of the facts themselves before the obligation to exercise due diligence commences and the statutory period starts running. Id., at 1154 n.3.
As noted by respondent in the reply to petitioner's opposition, the facts regarding petitioner's alleged incompetence have been known for some time. The order by the Solano County Superior Court denying petitioner's state habeas petition summarizes the discovery of these facts:
In 1993, petitioner retained an attorney to investigate whether a writ of habeas corpus was viable. This attorney applied for and received Court authority to review sealed portions of the court file. In his declaration for this review, the attorney indicated that he was investigating whether petitioner's plea was knowing and voluntary. According to petitioner's filing, the attorney recommended that a petition for writ of habeas corpus be filed arguing ...