United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are: 1) respondent's November 4, 2014 motion to dismiss on the grounds that the petition was filed beyond the statute of limitations and contains unexhausted claims (ECF No. 23); and 2) petitioner's December 5, 2014 motion for leave to conduct discovery (ECF No. 26). Both parties have filed oppositions to these motions. Petitioner opposes the motion to dismiss on the ground that he is entitled to equitable tolling based on his mental impairment of depression. Petitioner also bases his motion for discovery on his alleged mental impairment and allegations of newly-discovered evidence. On reply, respondent contends petitioner has failed to offer any evidence that he suffered from depression during the relevant period and thus is not entitled to equitable tolling. The court now issues the following order and findings and recommendations that respondent's motion to dismiss be granted on the ground that the petition is untimely and orders petitioner's motion for leave to conduct discovery denied.
A. Motion to Dismiss
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 was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
A jury convicted petitioner of first degree murder, burglary, forcible oral copulation, six counts of rape, sodomy and two counts of digital penetration. People v. Reed, 2003 WL 1383475, at *1 (March 20, 2003). The jury also found true nine great bodily injury enhancements regarding the sex crimes. Id. Petitioner appealed challenging the nine great bodily injury enhancements and the restitution fine. Id. On March 20, 2003, the California Court of Appeal affirmed the judgment. Id. at *5. Petitioner did not seek further review with the California Supreme Court.
Subsequently, petitioner filed a series of state petitions for habeas corpus. The first petition, filed on September 19, 2006 with the Sacramento County Superior Court, was denied on April 7, 2008, as untimely with citations to In re Robbins, 18 Cal.4th 770, 811-12 (1998) and In re Clark, 5 Cal.4th 750, 775-75 (1993). Resp't's Lod. Docs. 3, 4. The second petition, filed on February 17, 2011 with the Sacramento County Superior Court, was denied on May 3, 2011, as untimely and successive with citations to In re Clark, 5 Cal.4th 750, 797-98 (1993) and In re Robbins, 18 Cal.4th 770, 811-12 (1998). Resp't's Lod. Docs. 5, 6. The third state petition, filed on January 25, 2012 with the Sacramento County Superior Court, was denied on March 7, 2012, as successive with citations to In re Robbins, 18 Cal.4th 770, 811-12 (1998) and In re Clark, 5 Cal.4th 750, 774-75 (1993). Resp't's Lod. Docs. 7, 8. Petitioner filed his federal petition on February 9, 2014. ECF No. 1.
Notwithstanding these state habeas petitions, petitioner's conviction became final for AEDPA purposes on April 29, 2003. Petitioner had one year, that is, until April 29, 2004, to file a timely federal petition, absent applicable tolling. As such, the instant action, filed February 9, ...