The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner who proceeds pro se and in forma pauperis on his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition, alleging that it is untimely filed. See ECF No. 16. Petitioner opposes the motion to dismiss, and has additionally filed motions for discovery, for an evidentiary hearing, for counsel, and to amend and to supplement his petition. See ECF Nos. 12, 18, 28, 29, 30, 31, 35. For the reasons outlined below, the undersigned recommends that respondent's motion to dismiss the petition as untimely be granted, that petitioner's motions to amend and to supplement be granted in part and denied in part, and that petitioner's remaining motions be denied.
On April 15, 1998, petitioner was convicted of felony Second Degree Robbery in violation of Penal Code § 211 after he pled no contest pursuant to a plea agreement. Clerk's Transcript ("CT"), Lod. Doc. No. 16, at 0067-0074. According to the Post Sentence Report, on September 7, 1997, petitioner robbed a store in Oroville. CT 0076. The report reads that petitioner was seen on video from the store's surveillance system, and that petitioner's fingerprints were found from the cash register drawer and counter top. Id.
As part of the plea agreement, the prosecutor agreed not to re-charge petitioner with a previously dismissed charge that petitioner had robbed Donna Walberg at Bar X Liquors on September 9, 1997. CT 0069; Reporter's Transcript ("RT"), Lod. Doc. No. 17, at 11:14-26; ECF No. 20 at 23. The prosecution additionally agreed to dismiss three prior serious felonies alleged in the information. CT 0067, 0069-0075; RT 11:2-7.
Also as part of the agreement, petitioner waived his rights to a probation report and to a later sentencing hearing, and requested that he be sentenced on the day of his plea. CT 0067, 0069-75; RT 11:8-13. Petitioner further admitted two prior strikes, for a robbery committed in 1989 and a robbery committed in 1992. CT 0069. Petitioner agreed not to move to strike the strikes. CT 0069; RT 11:8-13. On April 15, 1998, the court sentenced petitioner to his expected sentence of 25 years to life. CT 0067-68, 0074; RT 22:3-7.
Petitioner filed an appeal with the state Court of Appeal, Third Appellate District, which he subsequently abandoned. Lod. Doc. No. 2. The state Court of Appeal dismissed the appeal on August 12, 1998. Lod. Doc. No. 3.
On July 21, 1999, petitioner filed a habeas petition with the state Superior Court, arguing that his three strikes sentence violated the Ex Post Facto Clause, the Fourteenth Amendment's due process clause, and his plea agreement. Lod. Doc. No. 4 ("First State Petition"). On August 27, 1999, the state Superior Court denied the petition finding it was without legal merit. Lod. Doc. No. 5.
On August 21, 2011, nearly twelve years after denial of the First State Petition, petitioner filed a second habeas petition with the state Superior Court. Lod. Doc. No. 6 ("Second State Petition"). In the Second State Petition, petitioner argued that his Fifth, Sixth, and Fourteenth Amendment rights were violated when the prosecutor used "illegal means to induce petitioners [sic] plea bargain by threatening to refile charge on petitioner for which prosecution did not have probable cause to file. Depriving Petitioner of Due Process." Lod. Doc. No. 6 at 7.
In essence, petitioner alleges that the prosecutor withheld exculpatory evidence from petitioner, because the prosecutor failed to advise petitioner that someone named Timmy Dean Osby had been indicted on February 4, 1998 for a robbery at the Bar X Liquor Store. Lod. Doc. No. 6 at 8-9.*fn1 Petitioner claims that, even though Mr. Osby was convicted for the robbery on March 25, 1998, the prosecution later used "that very same charge" against petitioner in order to induce his plea bargain. Id. Petitioner argues that the prosecutor would have had no probable cause to refile any charges against petitioner in connection for petitioner's alleged robbery of the Bar X, and so his plea was induced by false information, and was coerced, rendering the plea involuntary and invalid. Id. at 12.
Petitioner additionally argued that he received ineffective assistance of counsel because counsel failed to conduct a reasonable investigation of the Bar X Liquor robbery. Id. at 19.
On September 9, 2011, the Superior Court denied the Second State Petition, finding that "[t]he facts alleged in the petition, if true, fail to establish a prima facie case for relief," citing In re Duvall, 9 Cal.4th 464, 474-75 (1995). Lod. Doc. No. 7 at 1. The Superior Court further found that "[p]petitioner has failed to support that newly discovered evidence casts a fundamental doubt on the accuracy and reliability of the proceedings, and which if such evidence is credible, 'would undermine the entire prosecution case and point unerringly to innocence or reduced culpability," citing People v. Gonzalez, 51 Cal.3d 1179, 1246 (1990). Id. at 3.
On September 27, 2011, petitioner filed a petition for writ of error coram vobis in the state Court of Appeal. Lod. Doc. No. 8 ("Third State Petition"). Petitioner raised in the Third State Petition the same arguments he raised in his Second State Petition, adding that he only learned this "newly discovered information" about Mr. Osby's conviction from Mr. Osby himself in 2010. Lod. Doc. No. 8 at 13, 46.
On October 6, 2011, the Court of Appeal denied the Third State Petition without reference to any authority. Lod. Doc. No. 9.
On October 11, 2011, petitioner filed with the state Supreme Court a "Petition for Review to Exhaust State Remedies from the Unpublished Decision of the Third District Court of Appeal, Division One, Affirming a Criminal Conviction." Lod. Doc. No. 10 ("Fourth State Petition"). In the body of the Fourth State Petition, petitioner stated that the petition was filed solely to exhaust state remedies to permit the petitioner to seek federal habeas corpus relief. Id. at 4.
On October 19, 2011, petitioner filed with the state Court of Appeal a Petition for Writ of Habeas Corpus. Lod. Doc. No. 12 ("Fifth State Petition"). Petitioner again raised the issue that his plea was coerced, and also that he received ineffective assistance of counsel. He stated that he had a coram vobis petition for review pending with the state Supreme Court but that he could not raise in that petition his ineffective assistance of counsel claim. Lod. Doc. No. 12 at 6.
On October 27, 2011, the state Court of Appeal denied the Fifth State Petition without citation to any authority. Lod. Doc. No. 13.
On November 16, 2011, the state Supreme Court denied the Fourth States Petition without citation to any authority. Lod. Doc. No. 11.
On November 8, 2011, petitioner filed a petition for review with the state Supreme Court seeking to exhaust his state remedies with regard to the Fifth State Petition. Lod. Doc. No. 14 ("Sixth State Petition").
On December 13, 2011, petitioner filed his current federal habeas petition. ECF No. 1.
On January 4, 2012, the state Supreme Court denied the Sixth State Petition without citation to any authority. Lod. Doc. No. 15.
On January 18, 2012, this court ordered petitioner to show cause why the petition should not be dismissed as untimely. ECF No. 7. Petitioner's response, filed February 2, 2012, appears to allege that petitioner is entitled to equitable tolling, or to a delayed trigger date under 28 U.S.C. § 2244(d)(1)(D): when the Butte County Prosecutor withheld the fact that Timmy Dean Osby had already been convicted of the Bar-X-Liquor store crime that is in question here, there was no timely way for the petitioner to obtain this above information to exercise due diligence to file this claim before now. The petitioner received this newly discovered information in 2010 by sheer luck or coincidence from Mr. Timmy Dean Osby himself, and if that had not happen, the petitioner still to this very day would not have known that Mr. Timmy Dean Osby, had already been held responsible for, and convicted of the very same crime the Bar-X-Liquor store robbery that was later used by the Butte County Prosecutor to induce the Petitioners [sic] plea on 4-15-1998.
Petitioner further claims that he is actually innocent of the Bar-X Liquor store robbery, and that the prosecution committed a "Brady violation" by withholding from petitioner information that Mr. ...