The opinion of the court was delivered by: Hon. Jacqueline H. Nguyen United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
On April 20, 2010, petitioner David Hunt ("Petitioner") filed a Petition for Writ of Habeas Corpus ("Petition").
On October 6, 2010, Respondent filed a Motion to Dismiss the Petition ("Motion"), asserting that the Petition is barred by the one-year statute of limitation set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1). Petitioner filed an Opposition ("Opposition"). Respondent filed a Reply ("Reply"), and absent leave, Petitioner filed a Response to the Reply ("Response").
On March 10, 2011, the Magistrate Judge issued his Report and Recommendation ("R&R"), recommending that the Motion be granted and that judgment be entered dismissing this action with prejudice. (See R&R at 2, 13.)
On April 1, 2011, Petitioner filed Objections to the R&R ("Objections"). Now, having conducted a de novo review, including studying the Motion, the Opposition, the Reply, the Response, the R&R, and the Objections, the Court is persuaded that the Petition is untimely. This Court, therefore, adopts the findings, conclusions, and recommendations of the Magistrate Judge.
While Petitioner mainly reiterates arguments previously made in his Opposition and Response, Petitioner makes one new contention in his Objections. Petitioner contends that he is entitled to equitable tolling "based on trial counsel's 'mental' and 'physical' disabilities which additionally prevented Petitioner from discovering the factual predicate for Claims 8-9 any sooner than October 31, 2007." (See Objs. at 13 (underlining omitted).)
Specifically, Petitioner contends that his "trial counsel, Billy Hairston represented Petitioner from August 30, 2005 until his sentencing on February 17, 2006. During counsel's representation of Petitioner, counsel's wife died, . . . [and] he was subject to bouts of crying and emotional outbursts." (Objs. at 11.) Petitioner claims that during trial, "[c]counsel repeatedly told Petitioner he was suffering from 'severe headaches' and 'could not remember things.'" (Id.)
Petitioner also argues that he "made many requests to counsel before, during and after trial for a copy of his trial file, requests which counsel simply never responded to." (Objs. at 12.) Petitioner maintains that "[d]espite Petitioner's 'due diligent' attempts to locate any favorable evidence that might have been in his trial file, . . . Petitioner to this day has never been able to locate the file." (Id.)
The Court finds Petitioner's arguments unpersuasive. Two reasons guide this determination.
First, even assuming, for argument's sake, that there was negligence or ineffective assistance on the part of his trial counsel, Petitioner is not entitled to equitable tolling on this basis prior to the time Petitioner's conviction became final. In analyzing the equitable tolling issue, courts focus on the relevant time period, i.e., the time period of Petitioner's one-year statute of limitation. See Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005), as amended 447 F.3d 1165 (9th Cir. 2006), cert. denied, 549 U.S. 1134 (2007) (focusing on the time period of petitioner's one-year statute of limitation in determining whether petitioner was entitled to equitable tolling); Laws v. Lamarque, 351 F.3d 919, 922-23 (9th Cir. 2003). Here, Petitioner concedes that trial counsel ...