ORDER AND FINDINGS & RECOMMENDATIONS
Petitioner, a state prisoner, proceeds pro se with a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On February 23, 2012, respondent was ordered to file and serve a response to the petition. On July 11, 2012, respondent filed a motion to dismiss which is currently pending before the court and submitted for decision.
Respondent moves to dismiss the petition as second or successive under 28 U.S.C. § 2244(b), and, alternatively, as untimely filed beyond the one-year statute of limitations contained in 28 U.S.C. § 2244(d). Petitioner opposes the motion and has requested an evidentiary hearing. Respondent has filed a reply. After careful consideration of the record and the applicable law, the undersigned will recommend that respondent's motion to dismiss be granted.
Petitioner was convicted in the Sacramento County Superior Court of first degree murder, attempted murder and two counts of assault with a firearm with enhancement allegations found to be true. (Resp't's Lodged Doc. ("LD") 1.) On December 13, 1990, petitioner was sentenced to an indeterminate state prison term of forty-two years to life for the offenses of conviction and accompanying sentence enhancements. (Id.) On August 24, 1992, the California Court of Appeal for the Third Appellate District, reversed the trial court's imposition of a one-year prior prison term sentencing enhancement but affirmed the judgment of conviction in all other respects. (LD 2 at 75.) A petition for review filed on petitioner's behalf with the California Supreme Court was denied on November 25, 1992. (LD 3-4.)
In accordance with the state appellate court's decision, an amended abstract of judgment was filed on February 25, 1993, nunc pro tunc to December 13, 1990. (LD 5.) The amended abstract indicated the removal of the prior prison term enhancement and, accordingly, reflected that an indeterminate state prison term of forty-one years to life was imposed. (Id.) Subsequently, petitioner filed sixteen state post-conviction collateral challenges to his judgment of conviction at issue and each was denied. (LD 6-33.)
Petitioner has also filed two previous federal habeas actions in this court challenging the same judgment of conviction at issue here. His first federal petition for writ of habeas corpus was filed on September 24, 2001 and dismissed with prejudice as untimely on September 9, 2003. See Woods v. McGrath, CIV-S-02-1999 DFL DAD P (hereinafter "McGrath"); see also LD 34-36. The United States Court of Appeals for the Ninth Circuit declined to issue a certificate of appealability with regard to that judgment and the United States Supreme Court denied a petition for writ of certiorari filed on petitioner's behalf. (LD 37-38.) Petitioner's second federal habeas petition was filed on December 30, 2010 and dismissed on May 23, 2011, without prejudice to the filing of a second or successive petition with the required authorization from the Ninth Circuit. See Woods v. Hedgpeth, 2:10-cv-3489 LKK DAD (HC); see also LD 39-41.
Petitioner subsequently sought authorization to file a second or successive petition from the Ninth Circuit Court of Appeals and that request was granted on November 14, 2011. (LD 42-43.) He filed his petition for federal habeas relief in the pending action on December 2, 2011. (Doc. No. 1.) Therein, he challenges his 1990 judgment of conviction on two grounds:
(1) that he was denied the effective assistance of trial counsel in violation of his rights under the Sixth Amendment; and (2) that he is actually innocent of the crimes of conviction. (Id. at 5, 16.)
Respondent contends the pending petition should be dismissed as successive under 28 U.S.C. § 2244(b), notwithstanding the Ninth Circuit's authorization, because petitioner's first federal habeas corpus petition filed in this court was dismissed with prejudice due to untimeliness, which is an adjudication that bars as second or successive any future federal habeas corpus petition challenging the same judgment. (Doc. No. 19 at 12-20.)In the alternative, respondent contends that the petition should be dismissed as untimely because it was filed outside the applicable one-year statute of limitations set forth in 28 U.S.C. §2244(d). (Doc. No. 19 at 20-26.)
II. Petitioner's Opposition
Petitioner argues in opposition to the motion to dismiss that the pending habeas corpus petition is not successive because it presents a new claim that was not included in his previously-denied federal habeas petition. Specifically, petitioner contends that unlike his first federal habeas petition, here he is presenting a claim of actual innocence based on newly discovered evidence. (Doc. No. 23 at 3-24.) Petitioner further contends that respondent's argument that this petition is untimely is without merit because the pending petition is based on newly discovered evidence and because his second federal habeas corpus petition was dismissed without prejudice to refiling if the required authorization was received from the Ninth Circuit. (Doc. No. 23 at 73-75.)
In reply, respondent asserts that the basic thrust or gravamen of petitioner's ineffective assistance of counsel claim and, by extension, his accompanying actual innocence claim, is the same as previously presented to this court in his first federal habeas petition which was dismissed as untimely and that the now-pending petition is therefore indeed successive. (Doc. No. 27 at 3-4.) Respondent reiterates that the petition filed in this action is also untimely filed for the reasons set forth in the motion to dismiss. (Doc. No. 27 at 12.)
The petition for writ of habeas corpus pending before this court is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA "greatly restricts the power of federal courts to award relief to state prisoners who file second or successive habeas corpus applications." Tyler v. Cain, 533 U.S. 656, 661 (2001). The AEDPA provides, in relevant part:
(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a ...