United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se with this habeas corpus
action filed pursuant to 28 U.S.C. § 2254, which
challenges his 2003 convictions and sentence. Petitioner paid
the filing fee.
action proceeds on the original petition filed July 7, 2016.
See ECF No. 1. Petitioner challenges his convictions
for second degree murder, leaving the scene of an accident,
and false imprisonment, on three grounds which petitioner
broadly characterizes as his actual innocence: (1)
insufficient evidence; (2) ineffective assistance of trial
and appellate counsel; and (3) newly discovered evidence.
before the court is respondent's motion to dismiss the
petition on the ground that it was filed beyond the one-year
statute of limitations established by the Antiterrorism and
Effective Death Penalty Act (AEDPA), 28 U.S.C. §
2244(d). ECF No. 13. Petitioner filed an opposition, ECF No.
19, and respondent filed a reply, ECF No. 20. This matter is
referred to the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule
302(c). For the reasons that follow, the undersigned
recommends that respondent's motion to dismiss be
following dates are pertinent to the court's analysis:
• February 7, 2003: Following a trial by the court,
petitioner was convicted in the Tehama County Superior Court
of second degree murder (count one), leaving the scene of an
accident (count two), and false imprisonment (count three).
Petitioner was sentenced to an indeterminate state prison
term of fifteen years-to-life on count one, a consecutive
four-year term on count two, and an eight-month term on count
three. Lodg. Doc. 1. Petitioner appealed.
• September 1, 2004: The California Court of Appeal,
Third Appellate District, modified the judgment to stay
execution of sentence on count three (false imprisonment). In
all other respects, the judgment was affirmed. Lodg. Doc. 2.
Petitioner did not seek review in the California Supreme
• Petitioner later pursued one full round of petitions
seeking collateral review in the state courts:
• May 17, 2015: Petitioner filed a habeas petition in
the Tehama County Superior Court. Lodg. Doc. 3.
• June 5, 2015: The petition was denied as untimely in a
written opinion, citing In re Robbins, 18 Cal.4th
770, 780 (1998), and finding no exceptions thereto. Lodg.
• July 20, 2015: Petitioner filed a habeas petition in
the California Court of Appeal, Third Appellate District.
Lodg. Doc. 5.
• July 31, 2015: The petition was denied “as being
repetitive” (successive) citing In re Clark, 5
Cal.4th 750, 782-83, 797-98 (1993). Lodg. Doc. 6.
• September 1, 2015: Petitioner filed a habeas petition
in the California Supreme Court. Lodg. Doc. 7.
• December 9, 2015: The petition was summarily denied
with citations to In re Robbins, 18 Cal.4th 770, 780
(1998), and People v. Duvall 9 Cal.4th 464, 474 (1995).
(Lodg. Doc. 8).
• July 1, 2016: Petitioner filed his federal petition in
this court. ECF No. 1.
moves to dismiss the instant federal petition on the ground
that it was untimely filed after expiration of the one-year
statute of limitations set forth in 28 U.S.C. §
2244(d)(1)(A) (limitations period concludes one year after
“the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review”). Respondent contends that petitioner is
entitled to neither statutory nor equitable tolling.
See ECF No. 13.
initially asserts that he is entitled to equitable tolling
under 28 U.S.C. § 2244(d)(1)(A), “from 2004 to
late February 2015.” This period allegedly encompasses
petitioner's unsuccessful efforts to obtain his case file
from his appellate counsel, and concludes when petitioner
received a copy of the February 18, 2015 report prepared by
his private investigator, Carl A. Bennett. Mr. Bennett was
hired by petitioner's family on January 5, 2015, when
they had finally “earned enough funds.” ECF No. 1
at 17, 19-20.
argues in the alternative that calculation of the limitations
period should be premised on 28 U.S.C. § 2244(d)(1)(D),
pursuant to which the limitations period concludes one year
after “the date on which the factual predicate of the
claim or claims presented could have been discovered through
the exercise of due diligence.” Petitioner contends
that the new factual predicate triggering application of this
statute occurred in “late February 2015 , when he
received the new evidence from the private
investigator.” ECF No. 19 at 3-4.
broadly, petitioner contends that he is actually innocent,
and that his petition is therefore exempt from the statute of
limitations. See ECF Nos. 1, 19. Respondent has
addressed each of petitioner's contentions. See
ECF Nos. 13, 19.