United States District Court, C.D. California, Western Division
FINAL REPORT AND RECOMMENDATION OF UNITED STATES
DOUGLAS F. McCORMICK United States Magistrate Judge.
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
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. Dkt. 1
(“Petition”). 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.
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
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.
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.
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.
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.
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.
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. 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. 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.
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.
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. /// ///
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
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
o prematurely announcing ready for trial, id at 45
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
o failing to adequately cross-examine and corroborate the
testimony of Catalina and Lawrence Avalos 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.
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.
counsel was ineffective for:
o prematurely declaring ready for trial, without having
conducted any investigation, id. at 49-50 (subclaim
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
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
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
. 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.
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.
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.
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. 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.
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.
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.
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.
Ground Three and Ground One's Subclaim G Are Timely
Because They Qualify for a Later Accrual Date
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.
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. 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.
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
Ground Three and Ground One's Subclaim G
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); 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.
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
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.
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.
Ground One's Subclaims I, J, and part of F
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,
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
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).
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.
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.
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.
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 § ...