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Guerrero v. Davey

United States District Court, C.D. California, Western Division

April 17, 2017

FERMIN GUERRERO, Petitioner,
v.
DAVID DAVEY, [1]Respondent.

          FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          DOUGLAS F. McCORMICK United States Magistrate Judge.

         This Report and Recommendation is submitted to the Honorable Otis D. Wright, II, United States District Judge, under 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.[2]

         I.

         FEDERAL COURT PROCEEDINGS

         On October 15, 2010, Fermin Guerrero (“Petitioner”) constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody, challenging his 2003 convictions for first-degree murder and various enhancements.[3] Dkt. 1 (“Petition”).[4] Petitioner also filed an “Application for Certificate of Appealability Excusing Potential Procedural Default Under A.E.D.P.A. Time Limitations, ” arguing that he is entitled to equitable tolling based on his attorney's misconduct. Dkt. 3 (“Application”). On April 20, 2011, Respondent moved to dismiss the Petition as time barred and partially unexhausted. Dkt. 24. On July 5, 2011, Petitioner filed an opposition along with declarations and other evidence. Dkt. 33. On November 17, 2011, the previously-assigned Magistrate Judge issued a Report and Recommendation (“R&R”), recommending that the motion to dismiss be granted because the Petition was time barred and partially unexhausted. Dkt. 36. Petitioner filed objections, Dkt. 37, and on April 10, 2012, the Magistrate Judge ordered Respondent to file a supplemental brief addressing Petitioner's equitable-tolling claim. Dkt. 39. Respondent did so on August 16, 2012. Dkt. 48.

         On October 23, 2013, the District Judge accepted the R&R and dismissed the Petition with prejudice. Dkts. 54, 56. After Petitioner appealed, Dkt. 57, this Court issued an indicative ruling under Federal Rule of Civil Procedure 62.1, stating that the Magistrate Judge had issued an amended report and recommendation on October 18, 2013, but because of a clerical error it was never docketed and the judgment and order accepting the original R&R were issued in error. Dkt. 61. The Court asked the Ninth Circuit to remand the case to allow the Court to vacate the judgment and conduct further proceedings. Id.

         On December 12, 2013, the Ninth Circuit remanded the case, Dkt. 62, and on December 17, the District Judge vacated the judgment and order accepting the R&R, Dkt. 63.[5] On March 5, 2014, the Magistrate Judge issued an Amended Report and Recommendation (“Amended R&R”), finding that Petitioner alleged sufficient facts to warrant an evidentiary hearing on his equitable-tolling claim and recommending that the motion to dismiss be denied. Dkt. 67. Respondent filed objections, Dkt. 72, and on April 11, 2014, the District Judge accepted the Amended R&R and denied the motion to dismiss without prejudice, Dkt. 73. On April 28, 2014, the Magistrate Judge appointed the Office of the Federal Public Defender (“FPD”) to represent Petitioner. Dkt. 76.

         On July 22, 2015, this case was transferred to the undersigned Magistrate Judge. Dkt. 99. On August 10, 2015, Respondent filed an Answer and Memorandum of Points and Authorities. Dkt. 103. On November 19, 2015, Petitioner moved for leave to amend and lodged a proposed First Amended Petition (“FAP”). Dkt. 111. On December 15, 2015, Respondent opposed the motion for leave to amend, Dkt. 114, and on January 12, 2016, Petitioner replied, Dkt. 117.

         On January 26, 2016, the Court granted Petitioner's motion for leave to amend, ordered the FAP filed as of November 19, 2015, and set a date by which Respondent must file a motion to dismiss. Dkt. 118.

         On March 8, 2016, Respondent filed a motion to dismiss, arguing that both the original Petition and the FAP are time barred. Dkt. 125 (“Mot. Dismiss”). On April 19, 2016, Petitioner filed an Opposition to Motion to Dismiss First Amended Petition and Motion for Partial Summary Judgment and a separate statement of uncontroverted facts. Dkt. 133 (“Opp'n Mot. Dismiss”). On May 24, 2016, Respondent moved to strike the statement of uncontroverted facts, Dkt. 140, and on May 27, Petitioner opposed, Dkt. 142. On June 2, 2016, Respondent filed a reply to Petitioner's opposition to the motion to dismiss. Dkt. 145.

         On June 22, 2016, the Court set an evidentiary hearing for September 28 and granted Petitioner authority to depose Petitioner's attorney, Lawrence Harrison, and subpoena Petitioner's mother, Ana Castro, and sister, Maria del Rosario Galindo.[6] Dkt. 153. The parties deposed Harrison on August 11, 2016, and they stipulated that his deposition testimony would be used in lieu of testimony at the evidentiary hearing. See Dkt. 170 (“Harrison Dep.”). On September 28 and 29, 2016, the Court held the evidentiary hearing, at which Petitioner, Castro, and Galindo testified and exhibits were received.[7] At the end of the hearing, the Court granted Respondent's request that he be permitted to investigate Petitioner's prison records and submit a status report in 30 days. 3 Tr. 21-22.

         On October 28, 2016, Respondent filed a status report and attached copies of prison regulations and records. Dkt. 175 (“Status Report”). Respondent stated that he did not require additional time for further investigation. Id.

         As discussed below, after considering the testimony and evidence received at the evidentiary hearing, the record, and the parties' legal arguments, the Court recommends that Respondent's motion to dismiss the FAP be granted in part and denied in part and that Petitioner's motion for partial summary judgment and Respondent's motion to strike be denied as moot. /// ///

         II.

         PETITIONER'S CLAIMS

         The identity of claims raised in the original Petition bears on the timeliness of claims raised in the FAP. The Court therefore sets out in detail the claims raised in both petitions.

         The original Petition asserts the following claims:

. Ground One: The trial court violated Petitioner's due process rights by admitting evidence that Petitioner possessed several firearms when it was established that those firearms were not used in the murder. Petition at 5, 24-37.
. Ground Two: The trial court violated Petitioner's due process rights by failing to sua sponte instruct the jury that Petitioner's out-of-court statements should be considered with caution. Id. at 5, 37-42.
. Ground Three: Petitioner's due process and Sixth Amendment rights were violated when the trial court denied defense counsel's request for a continuance and thus did not allow defense counsel sufficient time to prepare for trial (“Ground 3a”) and when counsel failed in various ways to conduct an adequate pretrial investigation or establish an informed and substantial strategic defense (“Ground 3b”). Id at 6, 43-94. Specifically, counsel was ineffective for:
o prematurely announcing ready for trial, id at 45 (subclaim A),
o failing to corroborate Kathy Lainez's testimony that Petitioner's car was gray on the day of the murder, id at 64, present evidence from a body shop to show that Petitioner's car was painted because it had been in an accident, id at 55-56, 59-60, present witnesses to that car accident, id at 60, argue these points to the jury, id at 61, or properly cross-examine Jimmy Richardson about the color of Petitioner's car on the day of the murder, id at 55, 63 (subclaim B),
o failing to adequately cross-examine and corroborate the testimony of Catalina and Lawrence Avalos[8] by investigating and presenting witnesses to support their testimony regarding the type and color of the shooter's car, investigating the content of Catalina's 911 call, or highlighting Lawrence's testimony that the Camaro used in the shooting had driven by earlier that day, id at 67-79 (subclaim C), and
o failing to interview and present testimony from Raul Macias's family members about the police's execution of a search warrant, id at 80-86 (subclaim D).
. Ground Four: Cumulative error undermined the fundamental fairness of Petitioner's trial, violating his Fifth, Sixth, and Fourteenth Amendment rights. Id at 6, 95-98.

         The FAP asserts the following claims:

. Ground One: Trial counsel was constitutionally ineffective by failing in various ways to investigate or present reasonably available exculpatory and impeachment evidence. FAP 45-89.

         Specifically, counsel was ineffective for:

o prematurely declaring ready for trial, without having conducted any investigation, id. at 49-50 (subclaim C), [9]
o failing to obtain investigative notes from the Public Defender's office, id. at 51-52 (subclaim D),
o failing to introduce Catalina's photographic lineup statement to corroborate her testimony that Petitioner was not the shooter, id. at 53-55 (subclaim E),
o failing to interview witnesses, including the Avaloses' neighbors, Frederico Hernandez, Richard Adams, and “Teri, ” who could have corroborated that the shooter's car was green and that the shooter drove by the scene earlier that day; Macias, who would have provided information suggesting that Richardson, not Petitioner, was the shooter; and Macias's cousins, Gabriel Marin and Lorenzo Quezada, who would have rebutted the prosecution's claim that Macias was from Paramount and associated with a gang, id. at 56-67 (subclaim F),
o failing to interview Jimmy Richardson, who would have: revealed that law enforcement paid him to provide information implicating Petitioner in the shooting, provided information rebutting the prosecution's claim that Petitioner had confessed to committing the shooting, and revealed that a coworker drove a green Camaro, id at 67-70 (subclaim G),
o failing to rebut Richardson's claim that Petitioner altered his Camaro because it was “hot” with Richardson's prior inconsistent statement and records from the body shop that performed the work, id at 70-72 (subclaim H),
o failing to investigate or present evidence that the victim was killed by the T-Flats Street Gang, id at 72-75 (subclaim I),
o failing to investigate evidence that Petitioner's younger cousins, not Petitioner, were responsible for gang graffiti found in Petitioner's home, id at 75-79 (subclaim J), and
o failing to object to the prosecutor's false and improper statements in closing argument, including statements that “[t]here is no issue in this case, ” that witnesses described the shooter's car as maroon, that the Avaloses never mentioned before trial that Petitioner was not the shooter, that defense counsel wrote out the Avaloses' statements in advance, and that Richardson had already been sentenced before informing on Petitioner, id at 79-89 (subclaim K).
. Ground Two: The trial court violated Petitioner's due process rights by denying defense counsel's requested continuance. Id. at 89-93.
. Ground Three: The prosecutor violated Petitioner's due process rights by failing to disclose material impeachment evidence regarding Richardson. Id at 93-100.
. Ground Four: The trial court violated Petitioner's right to a fair trial by admitting multiple forms of evidence demonstrating his possession of several firearms when it was conclusively established that none was the murder weapon. Id at 100-17. . Ground Five: The trial court prejudicially erred in failing to sua sponte instruct the jury that it must determine whether Petitioner made an extrajudicial admission, and if so, that certain of the statements must be viewed with caution as set forth in CALJIC No. 2.71. Id at 118-23. . Ground Six: The cumulative effect of the constitutional violations rendered Petitioner's trial fundamentally unfair. Id. at 123-26.

         III.

         STATE COURT PROCEEDINGS

         On August 12, 2003, a Los Angeles County Superior Court jury convicted Petitioner of first-degree murder and found true gun and gang enhancements. 1 Clerks Transcript (“CT”) 232-33. On September 19, 2003, the trial court sentenced him to sixty years to life in prison. Id at 241-42.

         Petitioner appealed, raising claims corresponding to the original Petition's Grounds One and Two and the FAP's Grounds Four and Five. Lodged Document (“LD”) 2, 3. On March 22, 2005, the California Court of Appeal struck a 10-year sentence for the gang enhancement but otherwise affirmed the judgment. LD 6. Petitioner filed a petition for review in the California Supreme Court, raising the same two claims. LD 7. The California Supreme Court summarily denied the petition on June 8, 2005. LD 8.

         About nine years later, on January 26, 2014, Petitioner constructively filed a habeas petition in the California Supreme Court, raising claims corresponding to the original Petition's Grounds Three and Four and some of the FAP's Grounds One and Six.[10] LD 14. On April 23, 2014, the California Supreme Court denied the petition with citations to People v. Duvall, 9 Cal.4th 464, 474 (1995), and In re Swain, 34 Cal. 2d 300, 304 (1949), indicating that the claims were not raised with sufficient particularity. LD 15.

         On January 12, 2016, Petitioner, now represented by the FPD, filed a second habeas petition in the California Supreme Court, raising claims corresponding to the FAP's Grounds One through Six. See Dkt. 182-1. On July 13, 2016, the California Supreme Court directed the respondent to file an informal response to the petition, which it did on October 18. Dkt. 182-2; Dkt. 182-3. On November 23, 2016, Petitioner filed a reply to the informal response. Dkt. 182-4. On March 29, 2017, the California Supreme Court summarily denied the petition. Dkt. 189-1.

         IV.

         DISCUSSION

         Neither party disputes that the FAP is untimely. Rather, Petitioner argues that he is entitled to sufficient equitable tolling to render the original Petition timely and that the FAP's claims either relate back to the Petition's timely claims or qualify for a later accrual date. Respondent opposes all of Petitioner's arguments.

         For the reasons discussed below, Respondent's motion to dismiss the FAP should be granted as to Ground One's subclaims I, J, K, and part of subclaim F as well as part of Ground Six because they are untimely and do not relate back to the original Petition. As to the FAP's remaining claims, the motion to dismiss should be denied. The FAP's Ground Three and Ground One's subclaim G are timely because they qualify for delayed commencement of the statute of limitations under 28 U.S.C. § 2244(d)(1)(D). Moreover, Petitioner is entitled to sufficient equitable tolling to render the original Petition timely, and the FAP's remaining subclaims of Ground One, as well as Grounds Two, Four, Five, and the other part of Ground Six were either raised in the original, timely Petition or relate back to the claims in it.

         A. Ground Three and Ground One's Subclaim G Are Timely Because They Qualify for a Later Accrual Date

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a one-year limitation period applies to a federal petition for writ of habeas corpus filed by a person in state custody. See 28 U.S.C. § 2244(d)(1). The limitation period applies to each claim in a habeas petition on an individual basis and runs from the latest of four alternative accrual dates. Mardesich v. Cate, 668 F.3d 1164, 1170-71 (9th Cir. 2012); 28 U.S.C. § 2244(d)(1)(A)-(D). Most commonly, the limitation period begins running under the first listed accrual date-“the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Here, Petitioner did not file a petition for writ of certiorari in the U.S. Supreme Court. Thus, his conviction became final on September 6, 2005, 90 days after the California Supreme Court denied review. See Zepeda v. Walker, 581 F.3d 1013, 1016 (9th Cir. 2009). Under § 2244(d)(1)(A), therefore, Petitioner had until September 6, 2006, to file a federal habeas petition. See Patterson v. Stewart, 251 F.3d 1243, 1246-47 (9th Cir. 2001).

         Petitioner does not claim that he is entitled to a later accrual date under § 2244(d)(1)(B) or (C). But he does argue that subsection (d)(1)(D) applies to the FAP's Brady claim in Ground Three and some of its ineffective assistance of counsel subclaims in Ground One-specifically, subclaims G, I, J, and part of F.[11] Opp'n Mot. Dismiss at 48-57. The Court concludes that Petitioner is entitled to a later accrual date for Ground Three and subclaim G only.

         1. Law

         The statute of limitations begins to run under § 2244(d)(1)(D) when the “factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Id. “Due diligence does not require ‘the maximum feasible diligence, ' but it does require reasonable diligence in the circumstances.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (citation omitted). Although due diligence is measured by an objective standard, a court will also consider the petitioner's particular circumstances. Id. at 1235-36 (noting that court can consider petitioner's physical confinement, familial assistance, and government's representations in determining diligence).

         2. Ground Three and Ground One's Subclaim G

         In the FAP's Ground Three, Petitioner argues that prosecutor violated Petitioner's due process rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose material impeachment evidence regarding the government's main witness, Jimmy Richardson-that he was paid between $6, 000 and $10, 000 for providing incriminating information to police and testifying at Petitioner's trial. FAP at 93-100 & Ex. 11 (Richardson Declaration)[12]; Opp'n Mot. Dismiss, Ex. D (Farrand Decl. with attached email from Respondent's counsel confirming that the Bureau of Alcohol, Tobacco, and Firearms paid Richardson $3, 750 “for relocation and incidental fees” in association with Petitioner's case); Strickler v. Greene, 527 U.S. 263, 280-81 (1999) (holding that Brady's disclosure requirement applies to “impeachment evidence as well as exculpatory evidence”); Amado v. Gonzalez, 758 F.3d 1119, 1134 (9th Cir. 2014) (holding that Brady's disclosure requirement applies to evidence that “impeaches a prosecution witness”); Bagley v. Lumpkin, 798 F.2d 1297, 1302 (9th Cir.1986) (holding that payments to witnesses are Brady material). Petitioner further asserts that Petitioner's convictions were based on false testimony because the prosecution elicited “testimony from Richardson that the entire extent of his bargain with law enforcement was that he would inform on [Petitioner] in exchange for a reduced sentence.” FAP at 97-98 (citing Napue v. Illinois, 360 U.S. 264, 269 (1959)). Petitioner argues that for these reasons, he could not have discovered Ground Three's factual predicate before his habeas counsel actually interviewed Richardson in August 2015. Opp'n Mot. Dismiss at 48-52.

         Petitioner is entitled to a later accrual date for the FAP's Ground Three because he could not have earlier discovered its factual predicate with reasonable diligence. Before trial, Petitioner's attorney sent the prosecutor an informal request for information, including “any exculpatory evidence.” Opp'n Mot. Dismiss, Ex. C. Counsel also requested Richardson's rap sheet and “the plea agreement given . . . in exchange for his testimony.” Id. The prosecutor nevertheless failed to disclose that law enforcement paid Richardson to provide information about the shooting and for testifying against Petitioner. Opp'n Mot. Dismiss, Ex. D (Farrand Decl. ¶¶ 2-3 (stating that trial counsel's and deputy public defender's files did not “contain any documents or materials referring to or referencing any payments to Jimmy Richardson by any law enforcement agents or organizations”)).

         Nor did Richardson give Petitioner any reason to think that he had been paid for his testimony. At trial, Richardson was asked about his plea deal and testified only that he had pleaded guilty to two felonies, received a suspended sentence and felony probation, and agreed to cooperate with law enforcement by “get[ting] three gun buys and two counterfeit money buys” to help “get cases on other people dealing with guns and drugs.” 4 RT 674-76. Richardson also testified that when he was arrested, he told police about Petitioner's statements that he had shot someone; Richardson failed to disclose that he had been paid for providing that information. See id. at 676, 682-83. And nothing shows that Petitioner learned of Richardson's deal in the years following the trial, while Petitioner was incarcerated and had a limited ability to investigate his claims. As discussed below, after his direct appeal was denied, Petitioner hired attorney Harrison to investigate potential claims and file a habeas petition, but Harrison failed to investigate Petitioner's claims or, it seems, perform any other legal work. As such, Petitioner, despite his reasonable diligence, had no reason to suspect that Richardson had been paid by law enforcement until the FPD's investigators interviewed Richardson in August 2015. Because Petitioner filed the FAP raising his Brady claim only a few months later, he is entitled to a later accrual date for the FAP's Ground Three. See Quezada v. Scribner, 611 F.3d 1165, 1168 (9th Cir. 2010) (finding that petitioner was entitled to later accrual date under § 2244(d)(1)(D) because his repeated requests for witness-compensation information were rebuffed by silence or “outright denial”); Agavo v. Neven, No. 13-01741, 2015 WL 5601974, at *9 (D. Nev. Sept. 23, 2015) (finding that petitioner was entitled to later accrual date for Brady claim based on payment to witness because he was “not put on notice that the state had been making” such payments; “[a]t trial, the defense was led to believe that there were no payments” made to witness; and petitioner filed amended petition containing Brady claim “within months of finding evidence of alleged excessive payments” to witness). For these same reasons, Petitioner is also entitled to a later accrual date for Ground One's subclaim G, which asserts that counsel was ineffective for failing to interview Richardson because Richardson would have revealed that law enforcement paid him for providing information implicating Petitioner in the shooting, among other things. See FAP at 67-70.

         Respondent nevertheless faults Petitioner for failing to ask Richardson earlier about the payments. Respondent contends that the factual predicate of this claim “was readily discoverable at the time of trial-thirteen years ago- by merely asking Richardson, ” Mot. Dismiss at 36-37 (emphasis omitted), pointing to Richardson's statement in his declaration that “[i]f I had been interviewed by [Petitioner's] attorney or investigator, I would have told them the information in this declaration” and that he “would also have testified to these things at trial, if asked about them.” FAP, Ex. 11 at ¶ 9; see also Reply at 29-30. Respondent further contends that Petitioner “never alleges that he ever took any steps to discover if Richardson had any useful information” such as by attempting to locate or contact him, and that his counsel “did not even begin investigating this claim until one year after they were appointed to represent Petitioner.” Mot. Dismiss at 37 (emphasis omitted). But Petitioner had no reason to investigate a Brady claim until he had reason to believe that he possessed one. See Shelton v. Marshall, No. 10-01100, 2012 WL 2203022, at *9 (N.D. Cal. June 14, 2012) (finding that “[u]ntil there was reason for [petitioner] to suspect that he possessed a Brady claim, he did not have a reason to investigate such a claim”); see also Willis v. Jones, 329 F.App'x 7, 9, 17 (6th Cir. 2009) (“In order to file a timely petition under AEDPA, due diligence did not require [petitioner] to ask the state if it had withheld Brady material unknown to him.”). The prosecutor, by contrast, was obligated throughout the judicial process to turn over impeachment evidence. See Amado, 758 F.3d at 1135-36 (holding that “[t]he prosecutor's obligation under Brady is not excused by a defense counsel's failure to exercise diligence with respect to suppressed evidence” and that “defense counsel may rely on the prosecutor's obligation to produce that which Brady . . . require[s] him to produce”); Carter v. Bigelow, 787 F.3d 1269, 1273, 1282 (10th Cir. 2015) (finding that AEDPA limitation period did not begin running on Brady claim until post-conviction counsel received prosecution witnesses' declarations stating that police department had provided them with rent money, groceries, and other favorable treatment before they testified). Respondent's arguments fail.[13]

         3. Ground One's Subclaims I, J, and part of F

         Petitioner also argues that he is entitled to a later trigger date for FAP Ground One's subclaims I, J, and part of F because he was “incarcerated and pro se, without access to his case file, when he drafted the initial petition.” Opp'n Mot. Dismiss at 52-57. Petitioner is not entitled to a later trigger date for subclaims J and F because he could have discovered their factual predicates at the time of trial with reasonable diligence. In subclaim J, Petitioner alleges that counsel failed to investigate “information that the alleged gang graffiti found in [Petitioner's] home-which the prosecution claims showed [Petitioner] was a gang member-was actually not put there by [Petitioner] but was instead drawn by [his] much-younger cousins during a visit.” FAP at 75-76. Petitioner alleges that after seeing the photographs of the graffiti in court, his mother, Castro,

immediately recalled how the graffiti had come to be in the house: it had appeared suddenly one day, during a visit by [Petitioner's] three younger cousins . . . . [Castro] had noticed the graffiti after the cousins left, and had asked [Petitioner] to paint over it, but [he] did not do so because the room was being renovated and the wall was going to be repainted soon anyway.

Id. at 77. Petitioner asserts that after court that day, Castro told Petitioner's trial counsel how the graffiti came to be on the wall of the house, but counsel failed investigate the issue or present any evidence about it. Id.

         Petitioner necessarily knew, at the time of trial, that he was not responsible for the graffiti and that his counsel failed to present any evidence to that effect. Petitioner could have discovered the graffiti's origin simply by asking his mother, with whom he was in regular contact. See Ford, 683 F.3d at 1236 (finding that petitioner was not entitled to later accrual date when he had “reason to suspect” basis of claim “[b]ased on the testimony offered at [his] trial”); Macias v. Grounds, No. 11-3141, 2013 WL 1402844, at *4 (E.D. Cal. Apr. 5, 2013) (finding that petitioner was not entitled to later accrual date for claim based on family's exclusion from courtroom because “courtroom events” put him “on notice of a potential issue” and nothing “prevented him from asking his mother what had happened”), accepted by 2013 WL 3338652 (E.D. Cal. June 28, 2013).

         Nor is Petitioner entitled to a later trigger date for part of subclaim F. In the relevant portion of subclaim F, Petitioner asserts that counsel failed to interview Macias and his cousins, Marin and Quezada. FAP at 60-67. Petitioner argues that had counsel interviewed Macias, he would have revealed that Richardson, not Petitioner, had sold him the murder weapon; that Richardson had called Macias the day before the police searched Macias's home, saying that he wanted the gun back; that Richardson talked about spending time in Paramount; and that a mutual coworker who was friendly with Richardson drove a green Camaro. Id. at 60-61. But given that Macias testified to much of that information at trial, see 5 RT 922-38, Petitioner was on notice that Macias was “central[] to the state's case, ” Opp'n Mot. Dismiss at 60, and he could have, with reasonable diligence, discovered earlier counsel's alleged failure to interview him. Even without his case file, nothing prevented Petitioner from simply asking his trial counsel whether he had interviewed Macias. The same is true for Marin, who was discussed during Petitioner's trial, and Quezada, who was one of Petitioner and Richardson's coworkers. 4 RT 721-23, 731, 758-60.

         Petitioner likely could not have discovered subclaim I at the time of trial, even with reasonable diligence, because he did not at that time have access to his case file, which contained the police reports suggesting gang involvement. But that does not matter because Petitioner, or his counsel, could have earlier discovered subclaim I, as well as J and F, even if they had not been discoverable at trial and despite Petitioner's incarceration and lack of access to his case file.

         First, although Petitioner sent his case file to Harrison, he apparently had access to other copies of his reporter's and clerk's transcripts for most of his incarceration. See 1 Tr. 180-81 (Petitioner's testimony that ex-girlfriend sent him copies of “six volumes” of transcripts “and the clerk's transcripts”), 236-37 (Petitioner's testimony that an ex-girlfriend made copies of trial transcripts and sent them to him in prison, and that he had no contact with that ex-girlfriend after about 2005). Second, even accepting Petitioner's claim that he was unable to discover these subclaims because he was in prison and had sent his file to Harrison, Petitioner has failed to explain convincingly why he was not able to discover his additional claims once the Court appointed the FPD to represent him, on April 28, 2014. On that date, the Court appointed counsel “for the purpose of pursing Petitioner's equitable tolling and opposing any renewed Motion to Dismiss and for all future proceedings in this matter.” Dkt. 76 (emphasis added). The Court also directed that the FPD be served with copies of the reporter's and clerk's transcripts, Respondent's filings, the Petition, and the Court's file. Id. At that point, Petitioner's counsel could have obtained Petitioner's full case file from trial counsel and investigated any additional potential claims. But counsel did not do so until a year later, in April 2015, see Mot. Leave Amend, Ex. 4 (Farrand Declaration stating that she obtained trial counsel's file on April 6, 2015, and the public defender's file on April 17, 2015), and counsel did not file the FAP raising the new ineffective assistance of counsel claims until November 19, 2015.[14]

         Because Petitioner's new ineffective assistance of counsel claims could have been discovered earlier with reasonable diligence, a later accrual date under § 2244(d)(1)(D) is not appropriate. See Cook v. Lewis, No. 14-2259, 2015 WL 4624291, at *6 (C.D. Cal. Aug. 3, 2015) (finding petitioner not entitled to later accrual date when “he nowhere explains why he did not request his file or any other documents from his attorney at any point in the 10 years following his conviction, nor does he allege that he requested his file but counsel failed to provide it to him”), appeal docketed, No. 15-56284 (9th Cir. Aug. 21, 2015); Dutcher v. Stewart, No. 08-015, 2009 WL 1935853, at *4 (D. Ariz. July 6, 2009) (finding petitioner not entitled to later trigger date under ยง ...


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