REPORT AND RECOMMENDATION FOR ORDER:
(1) GRANTING RESPONDENT'S MOTION TO DISMISS [Doc. No. 9]; and (2) DENYING
PLAINTIFF'S MOTION TO RESTORE EQUITABLE TOLLING [Doc. No. 18].
NITA L. STORMES, Magistrate Judge.
Samuel Graham ("Petitioner") is a California prisoner serving two sentences of life in prison without the possibility of parole for two counts of first degree murder, two counts of first degree robbery, and one count of first degree burglary. On June 16, 2012, Petitioner filed his Petition for a Writ of Habeas Corpus ("Petition") under 28 U.S.C. § 2254. Petitioner claims he is innocent of his crimes based on newly discovered evidence that was not available at Petitioner's trial. (Petition at 17-20).
On January 2, 2013, Respondent filed a motion to dismiss the Petition as time barred under 28 U.S.C. § 2244(d). (Resp.'s Mem. of P. & A. at 3-8). Respondent argues that Petitioner does not qualify for statutory tolling and Petitioner failed to allege any basis for equitable tolling. (Resp.'s Mem. of P. & A. at 5-8). The court construes that motion as an opposition to the motion to dismiss.
On March 16, 2013, Petitioner filed a motion to restore equitable tolling ("Petitioner's motion"), claiming his counsel committed "egregious attorney misconduct" by promising to file timely the Petition, accepting Petitioner's fee, and then failing to file the Petition timely. (Petitioner's Motion at 1).
This Court has reviewed the Petition, Respondent's motion to dismiss, Petitioner's motion, and all supporting documents. After a thorough review, this Court RECOMMENDS that Respondent's motion to dismiss be GRANTED, that the motion to restore equitable tolling be DENIED, and that the Petition be dismissed with prejudice.
I. The Conviction.
A jury found Petitioner guilty of two counts of first degree murder, two counts of first degree robbery and one count of first degree burglary. (Lodgment 1 at 1-2). The jury also found true the special circumstance allegations that Petitioner was convicted of more than one murder, and that Petitioner committed one of the murders while engaged in the commission of a robbery and while engaged in the commission of a burglary. (Lodgment 1 at 1-2). On October 31, 2008, the trial court sentenced Petitioner to two terms of life in prison without the possibility of parole, and imposed, but stayed, determinate terms for Petitioner's robbery and burglary convictions. (Petition at 1; Lodgment at 2).
II. The Direct Appeal.
On December 7, 2009, Petitioner appealed the trial court's judgment, claiming that his convictions must be reversed because the trial court improperly barred him from introducing evidence that three other individuals could have committed the murders, and also that his sentence must be modified because a parole revocation fine was improperly imposed upon him. (Lodgment 1 at 2). On July 29, 2010, the California Court of Appeal agreed that the parole revocation fine was improperly imposed upon Petitioner and ordered that the fine be struck from Petitioner's sentence. (Lodgment 1 at 25). Otherwise, Petitioner's sentence remained unaffected. (Lodgment 1 at 25).
On September 7, 2010, Petitioner filed in the California Supreme Court a petition for review of the Court of Appeal's decision. (Lodgment 2). On October 13, 2010, the California Supreme Court denied this petition. (Lodgment 3).
III. Petitions for Collateral Review.
A. State Habeas Corpus Petition in California Supreme Court.
On December 27, 2011, Petitioner filed his first habeas corpus petition in the California Supreme Court. (Lodgment 4). Petitioner presented one claim, that newly discovered evidence that was not available at Petitioner's trial proves Petitioner's innocence. (Lodgment 4 at 12-15). Such newly discovered evidence is provided in two undated and unsigned affidavits, the first of Petitioner's girlfriend, Ahsaki Hudson, and the second of Petitioner's ...