The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an application for habeas relief pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 1993 of robbery and felony-murder with a special circumstance, and sentenced to life imprisonment without possibility of parole. Petitioner challenges his conviction on the following grounds: (1) prosecutorial suppression of exculpatory evidence; (2) ineffective assistance of counsel; (3) violation of due process in post-conviction discovery proceedings; and (4) insufficient evidence of robbery-murder special circumstance.
Respondent has moved to dismiss the petition as time barred. Petitioner has moved for leave to file a surreply or, alternatively, to strike respondent's reply. The court will address the latter housekeeping matter first.
Petitioner's Motion to Strike the Reply Or File a Surreply Petitioner contends that respondent has improperly raised new issues in the reply. The reply brief does address the merits of petitioner's claims for relief as well as the statute of limitations, but does so in response to petitioner's assertion of factual innocence as a gateway through which his otherwise time-barred claims should pass. Accordingly, the motion to strike the reply will be denied. The court will grant the alternative request for consideration of petitioner's surreply, in light of petitioner's pro se status and respondent's lack of opposition to the request.
Background Petitioner was convicted in San Joaquin County of robbing and murdering an 81-year-old man, Ramon Ables. The victim had been beaten and his wallet stolen. Ables died the day after sustaining injuries to his head. Petitioner does not dispute that he inflicted the injuries that caused Ables' death. At trial, petitioner testified that he struck Ables in self-defense and without intent to steal his wallet. Felony-murder liability required a jury finding that the murder occurred during commission of a robbery, so petitioner's intent was a central issue. The evidence against petitioner included the testimony of an eyewitness and the discovery of Ables' wallet in the police interrogation room where petitioner had been questioned. Petitioner's conviction was affirmed on appeal in 1994. The Court of Appeal corrected a sentencing error that left the LWOP term intact. The California Supreme Court denied review the same year.
Petitioner filed his first petition for collateral relief in superior court on November 24, 2004; it was denied on January 10, 2005. The second state court petition was filed in the Third District Court of Appeal on February 13, 2005, and denied on Feb. 17, 2005. A third state court petition was filed in the state Supreme Court on March 15, 2005, and denied on Feb. 1, 2006. Lodged Docs. 6-11.
On February 22, 2008, petitioner filed a motion for post-conviction discovery in superior court pursuant to Cal. Penal Code § 1054.9. The superior court took no action for 18 months, and petitioner filed a petition for writ of mandate in the court of appeal. That court directed the trial court to "commence proceedings forthwith" on the merits of the discovery motion. On January 13, 2010, the superior court denied the motion for discovery on grounds it had not been served on either the District Attorney or the Attorney General. Petitioner sought reconsideration, supported by a letter from the Attorney General's Office to the court of appeal acknowledging pendency of the discovery motion and stating the state's non-opposition to the petition for writ of mandate. The superior court denied the motion for reconsideration without comment on February 4, 2010. Lodged Docs. 18-24.
Petitioner initiated a second round of state post-conviction review by filing habeas petition in superior court on September 5, 2010. That petition was denied on October 5, 2010. Petitioner proceeded to the state appellate court on January 7, 2011, and that court denied his petition on January 20, 2011. Petitioner's final state petition was filed in the California Supreme Court on February 9, 2011, and denied on July 27, 2011. Lodged Docs. 12- 17.
The instant federal petition was filed on January 4, 2012.
Statute of Limitations The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1):
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...