Petitioner, currently a prisoner at the Federal Correctional Institution at Marianna, Florida, is proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his 2004 judgment of conviction entered in the San Joaquin County Superior Court following his plea of guilty to rape of an intoxicated person in violation of California Penal Code § 261(a)(3).
On November 3, 2010, respondent filed a motion to dismiss the pending petition as having been filed beyond the applicable one-year statute of limitations.*fn1 Petitioner opposes the motion, contending that his petition for writ of habeas corpus was timely filed. In this regard, petitioner argues that pursuant to 28 U.S.C. § 2244(d)(1)(D), the statute of limitations for the filing of this federal habeas action did not begin to run until January 25, 2008, when he was first informed by Assistant Federal Public Defender Cynthia C. Lie*fn2 that the offense he had pled guilty to in state court is considered a serious felony which constitutes a "strike" offense under California's Three Strikes law, and that petitioner had a potentially meritorious challenges to that conviction based upon the unreliability of the DNA evidence in his state case. See Response to OSC (Doc. No 16) at 2; Decl. of C. Lie ( Doc. No. 1) at 34. Petitioner attached a copy of the transcript of his change of plea hearing to his federal petition. That transcript appears to show reflect that his defense counsel and the deputy district attorney believed that petitioner was pleading guilty to a non-strike offense in the San Joaquin County Superior Court. See Doc. No. 1 at 81-88. The relevant portions of the entry of plea hearing transcript reflect the following exchange:
MR. HICKEY [Petitioner's Counsel]: He is prepared this morning to resolve his case. I have been in discussion with Mr. Brooks. We have come up with a section that is fine as to his conduct; sex with a woman who is passed out. So we'll enter a plea to 261(a)(3) for a period of three years.
MR. HICKEY: We want to make sure the subsection is correct, because it does make a difference.
MR. BROOKS [Deputy District Attorney]: Correct.
THE COURT: Having each of your rights in mind then, how do you plead to Count 1, a violation of Section 261(a)(3) of the Penal Code, a rape by use of drugs, a felony, occurring July 17, 1999? THE DEFENDANT: Guilty.
THE COURT: Because it is a serious felony or violent felony conviction, you will be required to complete 85 percent of the term.
MR. HICKEY: No, that was not agreed upon. That is why we found this section.
THE COURT: This is not a strike, then?
MR. BROOKS: I don't believe so, Judge.
THE COURT: All right. You will be eligible for 50 percent good time/work time credits. Do you understand that?
THE DEFENDANT: Yes. (Doc. No. 1 at 82, 85-86.)*fn3
As noted above, petitioner argues that he did not learn of the factual basis for his federal habeas petition until January 25, 2008, that the statute of limitations for the filing of a federal habeas petition did not begin to run until that date and with statutory tolling during the time his state habeas petitions were pending, this federal petition was timely filed. In support of that contention, he ...