FINDINGS AND RECOMMENDATIONS
Petitioner is a federal prisoner proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254.*fn1 Therein, petitioner is challenging his 2004 judgment of conviction for rape of an intoxicated person in violation of California Penal Code § 261(a)(3) which was entered in the San Joaquin County Superior Court pursuant to a plea agreement.
On September 16, 2010, this court ordered respondent to file a response to the habeas petition. On November 3, 2010, respondent filed the pending motion to dismiss, arguing that the petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). When petitioner failed to file an opposition to the pending motion, the court ordered him to show cause why the motion to dismiss should not be granted. On January 3, 2011, petitioner filed his response to the order to show cause in which he also argued that the motion to dismiss should be denied. On May 31, 2011, the court ordered respondent to file a reply addressing petitioner's arguments and, specifically, the issue of when the factual predicate with respect to each of petitioner's claims could have been discovered through the exercise of reasonable diligence under 28 U.S.C. § 2244(d)(1)(D). On July 28, 2011, respondent filed a three page reply without exhibits, very briefly and generally addressed the issue the court had identified.
On May 3, 2004, in the San Joaquin County Superior Court, petitioner entered a guilty plea to a violation of California Penal Code § 261(a)(3) (intercourse with a person who is prevented from resisting by any intoxicating or anesthetic substance) pursuant to a plea agreement and was sentenced to a term of three years in state prison. (Lod. Doc. 1.) Petitioner did not appeal from his judgment of conviction. (Mot. to Dismiss ("MTD") at 1.)
Thereafter, petitioner filed three state habeas petitions. First, on March 10, 2008, petitioner filed a habeas petition with the San Joaquin County Superior Court. (Lod. Doc. 2.) Therein, he raised two grounds for relief: (1) ineffective assistance of counsel in the negotiation and entry of his guilty plea based on counsel's misrepresentation that the conviction would not be a serious felony or a "'strike'"; and (2) ineffective assistance of counsel in failing to investigate and challenge the validity of the prosecutor's DNA evidence. On July 28, 2008, that habeas petition was denied.*fn2 (Lod. Doc. 3.)
On January 21, 2009, petitioner filed his next habeas petition with the California Court of Appeal for the Third Appellate District. (Lod. Doc. 4.) Therein, petitioner raised the same two grounds for relief that had been presented to the San Joaquin County Superior Court. On January 29, 2009, that petition was summarily denied. (Lod. Doc. 5.)
On March 26, 2009, petitioner filed a habeas petition with the California Supreme Court. (Lod. Doc. 6.) In that application petitioner raised the same two grounds as in his two earlier petitions as well as a third ground for relief, which was actually a combination of the other two grounds. Specifically, in his third ground for relief petitioner argued:
I was denied the effective assistance of counsel in plea negotiations, in that my attorney's failure to seek relevant discovery and to investigate possible challenges to the prosecution's DNA analysis, together with his failure to apprehend that the plea bargain he procured would leave me with a serious felony or "strike" conviction, prevented him from negotiating a more favorable plea bargain. (Id., Cal. Supreme Ct. Petition, Ground 3.) On April 22, 2009, the California Supreme Court summarily denied relief. (Lod. Doc. No. 7.)
On June 16, 2009, petitioner signed his federal habeas petition which was subsequently filed with this court on June 22, 2009. (Doc. No. 1 at 17.)
PETITIONER'S HABEAS PETITION
In his pending federal habeas petition, petitioner presents the same three grounds for relief that were presented to the California Supreme Court. First, petitioner claims that he was denied the effective assistance of counsel in plea negotiations and in the entry of his guilty plea.*fn3 In this regard, petitioner contends that during the plea negotiations he repeatedly asked his attorney if the offense he was pleading guilty to would be considered as a strike under California's Three Strikes law, since petitioner already had suffered one strike conviction and wished to avoid a second. Petitioner alleges that his attorney assured him that the charge to which he would plead guilty was not a strike and that counsel even emphasized this point on the record at the change of plea hearing. The following exchange at the plea hearing provides compelling evidence in support of petitioner's allegation in this regard:
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 [Petitioner's Counsel]: No, that was not agreed upon. That is why ...