ORDER ACCEPTING REPORT AND ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuаnt to 28 U.S.C. Section 636, the Court has reviewed the Petition, records on file, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected. The Court accepts the findings and recommendation of the Magistrate Judge.
Further, for the reasons stated in the Report and Recommendation, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right and thеrefore, a certificate of appealability is denied. See 28 U.S.C. § 2253(c)(2); Fed. R.App. P. 22(b); Miller-El v. Cockrell,
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Hon. Josephine Staton Tucker, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, it is recommended that the Petition be denied and the action be dismissed with prejudice.
I.
SUMMARY OF PROCEEDINGS
A. State Court Proceedings
In July 2009, Petitioner was convicted by a jury in Los Angeles County Superior Court of three counts of residential burglary and one count of willfully evаding a police officer. (Clerk’s Transcript (“CT”) 160-63.) The court determined that Petitioner had two prior strike convictions under California’s Three Strikes law and sentenced him to 130 years to life in prison. (CT 219.)
Petitioner appealed to the California Court of Appeal, which remanded the matter to the trial court for re-sentencing. (Lodged Document No. 3.) On February 3, 2011, the trial court sentenced him to 44 years and four months in prison. (Lodged Document No. 4 at 25.) Thereafter, Petitioner did not appeal or petitiоn for review in the California Supreme Court. (Petition for Writ of Habeas Corpus (“Petition”) at 3.) Instead, 15 months later, in May 2012, he filed a habeas corpus petition in the California Supreme Court, which was denied on August 8, 2012. (Lodged Document Nos. 5-6.)
B. Federal Court Proceedings
On October 25, 2012, Petitioner, proceeding pro se, filed the instant Petition in this court, pursuant to 28 U.S.C. § 2254, raising the following claims:
1. Newly discovered evidence demonstrates that he is innocent.
2. Trial counsel was ineffective for failing to investigate juror misconduct.*1151 (Petition at 5.1 )
Respondent now moves to dismiss the Petition on the ground that it is untimely. Petitioner opposes the motion.
II.
DISCUSSION
A. The Petition Was Filed More Than A Year After His Conviction Became Final
State prisoners seeking to challenge state convictions in federal habeas corpus proceedings are subject to a one-year statute of limitations. 28 U.S.C. § 2244(d). Here, Petitioner’s conviction became final on April 4, 2011—60 days after he was re-sentenced and the time for filing a notice of appeal had expired. See Cal. R. Ct. 8.308(a); Burton v. Stewart,
B. Statutory Tolling
The statute of limitations is tolled during the time “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). The statute of limitatiоns is not tolled between the time a petitioner’s conviction becomes final and the date he files his first collateral challenge in state court. See Thorson v. Palmer,
Here, Petitioner does not claim that he is entitled to statutory tolling. Nor does the record support any such claim. Petitioner filed his only state habeas petition on May 25, 2012, after the statute of limitations had expired. The filing of this petition, therefore, could not have tolled the statute of limitations. See Ferguson v. Palmateer,
C. Equitable Tolling
The statute of limitations is subject to equitable tolling in appropriate cases. Holland v. Florida,
D. Newly Discovered Evidence
In general, the statute of limitations begins to run when a petitioner’s
Petitioner has not argued that he is entitled to a later start date of the statute of limitations. Nevertheless, the Court notes that he contends that he is innocent based on newly discovered evidence, i.e., a writtеn statement from co-defendant Andre Piolet in which Piolet claims that Christopher Avery, now deceased, committed the burglaries with him. (Petition, Exh. A.) According to Piolet, he and Avery asked Petitioner that morning if they could use his car and Petitioner agreed. Thereаfter, Piolet claims, he and Avery burglarized the homes. Based on this evidence, the Court considers the plausibility of a later start date based on the newly discovered evidence.
The bottom line is that, although Piolet’s written statement may be new, the factual predicate underlying the claim, i.e., that Avery, not Petitioner, accompanied Piolet on the burglaries, is not new. Brandon Crawford, a long-time friend of Petitioner’s, testified at trial that, on the morning of the burglaries, he was with Petitioner when Piolet and Avery asked Petitioner if they could borrow his car to “handle some business.” (Reporter’s Transcript (“RT”) 1522-23.) Petitioner agreed. (RT 1533.) Crawford testified that, when he and Petitioner returned to Petitioner’s home later that day, Petitioner’s car was gone. (RT 1523-25.) Thus, even accepting Piolеt’s statement at face value, it is not enough to support a claim of newly discovered evidence because the factual predicate underlying the claim was known to Petitioner and his counsel at the time of trial. See Moreland v. Felker,
Petitioner contends that the new evidence from Piolet proves that he is innocent and, thus, the Court should overlook his late filing. For the following reason, this argument is rejected.
Just last week, the United States Supreme Court held for thе first time that there is an actual innocence exception to the statute of limitations. McQuiggin v. Perkins, — U.S. -,
Petitioner has made no such showing here. He suggests that the statement purportedly writtеn by co-defendant Piolet more than four years after the crimes— alleging that it was Avery who burglarized the homes with Piolet, not Petitioner— proves his innocence. (See Petition, Exh. A.) The Court disagrees. To begin with, Piolet’s statement was not made under oath or signed under penalty of perjury. This causes the Court to look askance at the statement. See Estrada v. Hedgepeth,
Finally, Piolеt’s statement is undermined by the evidence at trial. At trial, two witnesses testified that they saw Petitioner in the area of the burglaries at the time of the burglaries. (RT 623-31, 803-07, 1257). Though Brandon Crawford testified that Avery had been with Piolet when Piolet allegedly borrowed Petitioner’s car оn the day of the robberies, (RT 1522-23, 1533), Crawford’s testimony was suspect, in part, because he had not come forward until the last day of trial, despite the fact that he knew that Petitioner, who was a friend of his, had been in jail for more than a year. (RT 1501-02, 1528-30.) Moreover, Crawford himself was a convicted felon. (RT 1518.) And, as Crawford explained at trial, there was no way to
Thus, for all these reasons, the Court finds that Petitioner has not presented trustworthy and reliable evidence sufficient to undermine the Court’s confidence in the verdict. See Schlup,
III.
RECOMMENDATION
For thesе reasons, IT IS RECOMMENDED that the Court issue an Order (1)accepting this Report and Recommendation and (2) directing that Judgment be entered denying the Petition and dismissing the case with prejudice.
DATED: June 3, 2012.
Notes
. Pursuant to the "mailbox rule” for prisoner filings, a prisoner’s pleadings are deemed filed on the day they are delivered to prison officials for mailing. See Houston v. Lack,
. Although Petitioner dated his state habeas petition and an accompanying "Proof of Service by Mail” form May 1, 2012, he makes clear on the proof of service that he mailed the petition to the state supreme court on May 25, 2012. (See Lodgment No. 5.) For that reason, the Court usеs May 25, 2012 as the filing date. Regardless of which date the court uses, however, the petition was filed after the statute of limitations had expired.
. Piolet was initially charged with Petitioner in the burglaries. (CT 84-88.) He was not, however, tried with Petitioner. Though the record does nоt indicate what happened in his case, presumably, Piolet was convicted since he has now signed a statement that he committed the burglaries. (Petition, Exh. A.)
. As for Petitioner’s claim that counsel was ineffective because he failed to raise а claim of juror misconduct, clearly, Petitioner was
. The Court is not inclined to issue a certificate of appealability in this case. See Rule 11, Federal Rules Governing Section 2254 Cases ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”). If Petitioner believes a certificate should issue, he should explain why in his objections.