FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se in this action filed pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss. Plaintiff opposes the motion.
FACTUAL AND PROCEDURAL BACKGROUND
On June 26, 1995, petitioner's prison cell was searched by a correctional officer who found quantities of suspected heroin and methamphetamine. See Lodgment ("LD") 6. On October 13, 1995, petitioner was convicted in Sacramento County Superior Court following a jury trial on three counts of possession of drugs in prison with multiple sentencing enhancements found to be true. LD 1. On November 17, 1995, petitioner was sentenced to an indeterminate term of fifty-seven years to life. Id.
On direct appeal, the California Court of Appeal, Third Appellate District, modified the judgment on December 8, 1997 by reversing one of the possession convictions and directing the trial court to amend the abstract of judgment to reflect the reversal and to reflect the imposition of a one-year term for each of the two prior prison term enhancements. LD 2. As modified, the judgment was affirmed. Id.
Petitioner appealed to the California Supreme Court, which denied review on April 1, 1998. LD 3-4.
Prior to filing this action, petitioner filed three petitions for post-conviction relief, two in the state court and one in this court. See LD 5-16; case No. 2:02-cv-2378-WBS-DAD.
The first petition was a petition for writ of coram nobis filed in the Sacramento County Superior Court on November 19, 2001 and set forth two grounds for relief: (1) the prosecutor failed to disclose exculpatory evidence in the form of his cellmate's confession in violation of Brady v. Maryland, 373 U.S. 83 (1963), and (2) prosecutorial misconduct. LD 5. Petitioner argued that the prosecutor failed to disclose petitioner's cellmate's confession to possession of the drugs discovered in the cell and the cellmate's conviction therefor. As a result of the prosecutor's failure to disclose this evidence, petitioner argued he was prejudiced because he was forced to testify and disclose his prior convictions. The trial court construed the petition as a petition for writ of habeas corpus and found that petitioner was not prejudiced because, based on his testimony and the correctional officer's report, sufficient evidence existed to find petitioner guilty of accomplice liability. The trial court, thus, denied the petition on December 27, 2001 for failure to state a prima facie case for relief. LD 6. Petitioner appealed to the California Court of Appeal, Third Appellate District, which summarily denied the petition on March 14, 2001. LD 7-8. Petitioner then appealed to the California Supreme Court, which also summarily denied the petition on September 25, 2001. LD 9-10.
The second petition, a petition for writ of habeas corpus, was filed on October 29, 2002 in the Eastern District of California in case No. 2:02-cv-2378-WBS-DAD. Therein, petitioner alleged that he was entitled to relief on the grounds of newly discovered evidence, actual innocence, and prosecutorial misconduct. On December 12, 2002, respondents filed a motion to dismiss the petition as untimely, in violation of 28 U.S.C. § 2254(d). On June 3, 2003, Magistrate Judge Dale A. Drozd issued findings and recommendations recommending that the petition be dismissed as untimely, that petitioner was not entitled to equitable tolling and that petitioner did not make a showing of actual innocence. On July 14, 2003, the Honorable William B. Shubb adopted the findings and recommendations in full and judgment was entered accordingly. On June 25, 2004, the Ninth Circuit Court of Appeal affirmed the judgment. LD 21. Petitioner filed a request for rehearing in the appellate court, which was denied on September 17, 2003. LD 22.
Petitioner's third post-conviction petition was filed in the Sacramento County Superior Court on June 22, 2009. LD 11. In that petition for writ of habeas corpus, petitioner sought relief on grounds of ineffective assistance of trial and appellate counsel, the prosecutor's Brady violation, and actual innocence. Petitioner asserted that his trial counsel was ineffective for failing to discover his cellmate's confession. In all other respects, petitioner set forth the same arguments as in his prior petitions for relief. The trial court denied the petition on October 13, 2009 as successive, lacking an adequate explanation for the delay in raising new claims and failure to state an actual innocence claim. LD 12. Petitioner appealed to the California Court of Appeal, Third Appellate District, which summarily denied the petition on November 5, 2009. LD 13-14. Finally, petitioner appealed to the California Supreme Court, which summarily denied the petition on June 9, 2010 with citation to In re Robbins, 18 Cal.4th 770, 780 (Cal. 1998), and In re Clark, 5 cal.4th 750 (Cal. 1993). LD 15-16. Petition then filed a petition for writ of certiorari with the United States Supreme Court. LD 17. That petition was denied on October 12, 2010. Id.
Petitioner initiated this action on August 9, 2010 in the Northern District of California. On September 10, 2010, the matter was transferred to this court. In the petition now pending, petitioner argues that (1) he is entitled to equitable tolling of the limitations period because he suffered extraordinary circumstances when the prosecutor withheld discovery of petitioner's cellmate's confession and disciplinary hearing reports; (2) the Ninth Circuit Court of Appeals failed to adequately address the alleged Brady violation; (3) he is actually innocent; (4) trial counsel provided ineffective assistance by failing to subpoena the disciplinary hearing records of petitioner's cellmate; and (5) appellate counsel provided ineffective assistance by failing to assert on appeal that trial counsel provided ineffective assistance.
On May 11, 2011, respondent filed a motion to dismiss the petition as barred by the statute of limitations and for failure to state a claim. On June 9, 2011, petitioner filed an opposition. Respondent has not filed a reply.
Because the instant petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. ...