Coleman v. Allison (223 F. Supp. 3d 1035, 2015)

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

VALERIE BAKER FAIRBANK, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings, records on file herein, and the Supplemental Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Supplemental Report and Recommendation to which objections have been made. The Court accepts the findings and recommendations of the Magistrate Judge. IT THEREFORE IS ORDERED that (1) petitioner’s Motion to Amend with respect to Grounds 10-21 of the proposed Amended Petition is denied; and (2) Judgment be entered dismissing this action with prejudice.

SUPPLEMENTAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ROBERT N. BLOCK, United States Magistrate Judge.

This Supplemental Report and Recommendation is submitted to the Honorable Valerie Baker Fairbank, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

PROCEEDINGS

On March 31, 2010, petitioner filed a pro se Petition for Writ of Habeas Corpus by a Person in State Custody (“Pet.”) herein. The Petition purported to allege six grounds for relief that, according to the Petition, had previously been exhausted in a Petition for Review to the California Supreme Court. The Petition included an attached brief (“Pet. Attach.”) in support of petitioner’s six grounds for relief.

Concurrently with the filing of the Petition, petitioner filed a “Motion to Stay Adjudication of Habeas Corpus Petition to Allow Petitioner to Properly Exhaust Unexhausted Federal Claims.” The Motion to Stay listed nine additional ineffective assistance of trial counsel claims that petitioner indicated he wanted to raise herein, but were not yet properly exhausted.

Although petitioner stated in the Motion to Stay that his stay-and-abeyance request was being made pursuant to Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), under the Ninth Circuit’s decision in King v. Ryan, 564 F.3d 1133 (9th Cir.), cert. denied, 558 U.S. 887, 130 S.Ct. 214, 175 L.Ed.2d 148 (2009), the Court’s consideration of the motion to stay petitioner’s fully exhausted petition was not governed by Rhines. Rather, petitioner’s stay motion was governed by the stay and abeyance procedure approved in Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 987-88 (9th Cir.), cert. denied, 525 U.S. 920, 119 S.Ct. 274, 142 L.Ed.2d 226 (1998), and Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir.2004), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir.2007). Thus, the fact that petitioner had not even purported to make the showing of good cause required under Rhines was not dis-positive of petitioner’s stay motion, since the Rhines “good cause” limitation does not apply to the “Kelly procedure.” Under the Kelly procedure, a federal district court has the discretion to stay and hold in abeyance a fully exhausted petition in order to provide the petitioner with the opportunity to proceed to state court to exhaust his unexhausted claims. Then, once the claims have been exhausted in state court, the petitioner may return to federal court and amend his stayed federal petition to include the newly exhausted claims. See Kelly, 315 F.3d at 1070-71; see also Jackson v. Roe, 425 F.3d 654, 661 (9th Cir.2005); James v. Pliler, 269 F.3d 1124, 1126-27 (9th Cir.2001); Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir.2000), cert. denied, 533 U.S. 941, 121 S.Ct. 2576, 150 L.Ed.2d 739 (2001); Taylor, 134 F.3d at 987-88,

Prior to ruling on petitioner’s stay motion, the Court decided to afford respondent the opportunity to be heard. Accordingly, the Court ordered service of the Petition and petitioner’s stay motion on respondent, and set a deadline for the filing of respondent’s opposition (if any) to the stay motion.

In her ensuing opposition, respondent contended that petitioner’s stay motion should be denied because, for statute of limitations purposes, the nine additional ineffective assistance of trial counsel claims that petitioner indicated in his stay motion he wanted to raise herein did hot relate back to the exhausted claims alleged in the Petition, and a stay therefore would be futile. However, respondent was not contending that any of petitioner’s unexhausted ineffective assistance of counsel claims currently was time barred.^ According to respondent, the one-year limitation period did not commence running until June 30, 2009. Consequently, it appeared that, when petitioner filed the first of his two pending California Supreme Court habeas petitions on February 1, 2010, five months of the limitation period still remained. Moreover, respondent had conceded that “the period of limitations appeared] to be tolled presently.” Accordingly, unless the California Supreme Court expressly denied both pending ha-beas petitions for untimeliness, it appeared to the Court that petitioner would have five months from the denial of those petitions to amend his pending federal ha-beas petition to add any of the newly exhausted claims that currently were pending before the California Supreme Court.

While it was conceivable that, by the time petitioner sought leave to amend his pending federal habeas petition, the limitations period might have run with respect to one or more of the claims that petitioner was seeking leave to add, it could not be said with certainty as of the time the opposition was filed that a stay would be futile. Nor did it make any difference that petitioner’s then pending California Supreme Court habeas petitions did not include all nine of the ineffective assistance of counsel claims that petitioner indicated in his stay motion he wanted to raise herein. Since the limitation period still had nearly two months to run, petitioner still had time to either add those claims to one of his pending California Supreme Court habeas petitions or file a new California Supreme Court habeas petition that included those claims.

Accordingly, the Court decided to exercise its discretion under Kelly with respect to petitioner’s stay motion, by granting it on certain conditions that were specified in an Order issued on May 7, 2010. The Court stated in its Order that its granting of petitioner’s motion was without prejudice to respondent opposing a later motion to amend by petitioner on the ground that one or more of the claims that petitioner was seeking to add was time barred.

On October 7, 2010 (proof of service date), petitioner constructively filed a document captioned “Motion to Amend Petitioner’s Habeas to Add Newly Exhausted Claims.” Concurrently, petitioner lodged what the Court presumed was intended as his proposed Amended Petition. However, it was unclear to the Court from its review of the proposed Amended Petition whether petitioner had decided to abandon the six grounds for relief alleged in his original Petition. It also was unclear to the Court precisely what claims petitioner now was purporting to allege. The Court therefore issued an Order on October 19, 2010 requiring petitioner to lodge a revised proposed Amended Petition that (a) set forth all of his grounds for relief in the habeas form itself (including additional copies of p. 6 if he had more than five separate grounds), and (b) if the proposed Amended Petition form referenced any attached writ or supporting memorandum in setting forth any of those grounds, specified the pages in the attached document that applied to each of the stated grounds for relief.

On November 17, 2010, petitioner lodged another proposed Amended Petition (hereinafter “Am. Pet.”) that rectified the deficiencies about which the Court had apprised petitioner in its October 19, 2010 Order re Further Proceedings. Accordingly, the Court set deadlines for respondent to file either opposition to petitioner’s Motion to Amend or a notice of non-opposition thereto, and for petitioner to file a reply if respondent did file opposition.

Respondent filed opposition (“Opp.”) to the Motion to Amend on December 21, 2010. Petitioner filed a Reply (“Reply”) thereto on January 20, 2011.

On February 9, 2011, the Court issued a Report and Recommendation in which it recommended that petitioner’s Motion to Amend be granted in part and denied in part. The Court found that: (a) except for Grounds 11 and 19, none of the new claims alleged in the Amended Petition related back to the filing of petitioner’s original Petition; (b) unless a basis for tolling the statute existed, petitioner’s last day to file a federal habeas petition containing his unrelated claims was June 30, 2010; (c) petitioner had not met his burden of demonstrating that statutory tolling rendered the lodging for filing of the Amended Petition herein timely; and (d) petitioner was not entitled to any equitable tolling of the limitation period. The Court further found that recent Ninth Circuit precedent, including Lee v. Lampert, 610 F.3d 1125, 1128-31 (9th Cir.2010), foreclosed petitioner’s reliance on an “actual innocence” exception to the AEDPA statute of limitations. Accordingly, the- Court recommended that petitioner’s Motion to Amend be granted with respect to Grounds 1-9, 11, and 19 of the proposed Amended Petition and denied with respect to Grounds 10, 12-18, and 20-21 of the proposed Amended Petition.

The Court was unaware at the time it issued its Report and Recommendation that, the day before, the Ninth Circuit had decided to rehear en banc the Lee case and decreed that the panel decision could not be cited as precedent in this Circuit. The Court therefore concluded' that it would be necessary to issue a Supplemental Report and Recommendation further addressing petitioner’s actual innocence claim (which would also apply to respondent’s contention in respondent’s Opposition Memorandum that petitioner’s claims were procedurally defaulted).

Based on the ensuing Supplemental Opposition Memorandum filed by respondent and petitioner’s Supplemental Reply Memorandum thereto, the Court issued an Order re Further Proceedings on June 20, 2011. The Order advised of the Court’s conclusion that petitioner might be able “to muster a plausible factual case meeting the exacting gateway standard established by the Supreme Court in Schlup for overriding a petitioner’s clear failure to meet deadlines and requirements for filing a timely petition in federal court” and that petitioner’s actual innocence claim therefore could not be determined without the Court conducting an evidentiary hearing. See Majoy, 296 F.3d at 775. The Court noted that, if it held such an evidentiary hearing and concluded that petitioner had met his burden under Schlup, such conclusion would also be dispositive of respondent’s contention that petitioner’s additional claims were procedurally defaulted because the law was well established that there was an actual innocence exception to the procedural default doctrine. However, the need to conduct an evidentiary hearing on petitioner’s actual innocence claim (which would necessitate the appointment of counsel for petitioner) and to reach the merits of his additional claims would be obviated if the Ninth Circuit were to issue its en banc decision in Lee v. Lampert in the meantime and rule that there was no actual innocence exception to the AEDPA statute of limitations. The Court further noted that Grounds 1-6 of petitioner’s original Petition, which now corresponded to Grounds 1-9 of petitioner’s proposed Amended Petition, (a) were not subject to a time bar defense, and (b) were subject to the AEDPA standard of review since those claims were adjudicated on the merits. The Court further noted that the AEDPA required that the Court evaluate the reasonableness of the California court’s adjudication of those claims on the basis of the record before the state courts. Accordingly, the Court advised, it had decided to: (a) defer ruling on petitioner’s Motion to Amend the Petition to add 12 new claims, and (b) instead bifurcate the proceeding by first adjudicating petitioner’s original 6 claims (which corresponded to Grounds 1-9 of his proposed Amended Petition). The Court therefore granted petitioner’s ■ Motion to Amend, but only to the extent that it sought to amend Grounds 1-6 of petitioner’s original Petition by realleging instead Grounds 1-9 of petitioner’s proposed Amended Petition.

Petitioner subsequently filed objections to the June 20, 2011 Order re Further Proceedings, While his objections were pending before the then-assigned District Judge, the Ninth Circuit issued its en banc decision in Lee v. Lampert, 653 F.3d 929 (9th Cir.2011). The Ninth Circuit ruled that a credible claim of actual innocence did constitute an exception to the AEDPA statute of limitations. Based on the en banc decision, the District Judge issued a Minute Order on October 13, 2011 wherein he noted that the Ninth Circuit en banc decision vitiated this Court’s rationale for deferring its ruling on the part of petitioner’s Motion to Amend seeking to add Grounds 10-21 of the proposed Amended Petition. To that extent, the then-assigned District Judge sustained petitioner’s objections to the June 20, 2011 Order and remanded the matter back to this Court for further proceedings based on the en banc decision in Lee.

On remand from the District Judge, the Court issued another Order re Further Proceedings on October 19, 2011. The Court advised therein that it remained the Court’s view that, in order to rule on petitioner’s Motion to Amend (and specifically the portion as to which the Court previously had deferred ruling), it would be necessary to conduct an evidentiary hearing on petitioner’s actual innocence claim. The Court therefore appointed the Federal Public Defender to represent petitioner for purposes of such evidentiary hearing. The Court further advised that it also remained the Court’s view that the need to conduct an evidentiary hearing on petitioner’s actual innocence claim had no bearing on the Court’s determination of Grounds 1-6 of petitioner’s original Petition, which now corresponded to Grounds 1-9 of petitioner's proposed Amended Petition. Accordingly, the Court advised that its appointment of counsel for petitioner did not extend to those claims, which were not subject to a time bar defense or a procedural default defense, and which appeared to be subject to the AEDPA standard of review on the basis of the record before the state courts. The Court also advised that the part of the Court’s June 23, 2011 Order granting petitioner’s Motion to Amend, to the extent that the Motion to Amend sought to amend Grounds 1-6 of petitioner’s original Petition by realleging instead Grounds 1-9 of petitioner’s Amended Petition, would stand. Further, the Court advised, since the Court ultimately would have to reach the merits of those claims, no matter how it decided petitioner’s actual innocence claim, there was no reason to delay the briefing of those claims.

Respondent filed an Answer to Grounds 1-9 of the Amended Petition (“Ans.”) on December 12, 2011, accompanied by a Memorandum of Points and Authorities (“Ans. Mem.”). Following multiple extensions of time, petitioner filed a “Traverse in Response to Respondent’s Answer to Amended Petition” on April 3, 2012 (“Trav.”). Petitioner then filed, on April 25, 2012, a Motion to Expand the Record.

In its Partial Report and Recommendation issued herein on June 21, 2012, the Court recommended that Grounds 1-9 of petitioner’s Amended Petition be denied. Following multiple extensions of time, petitioner filed objections to the Partial Report and Recommendation on September 12, 2012. The then-assigned District Judge issued an Order on February 12, 2013 accepting the findings and recommendations of the Magistrate Judge with respect to Grounds 1-9 of the Amended Petition. The District Judge denied petitioner’s Motion to Expand the Record and request for an evidentiary hearing insofar as the Motion and request related to Grounds 1-9 of the Amended Petition, and denied Grounds 1-9 of the Amended Petition. The District Judge also denied petitioner’s request for a Certificate of Appealability with respect to 12 issues relating to the.Partial Report and Recommendation,

At a status conference held on April 4, 2013, the Court ordered counsel to submit a proposed schedule for the evidentiary hearing on petitioner’s actual innocence claim as an equitable exception to the statute of limitations, for the filing of witness lists and exhibit lists, and for each side’s objections to the other side’s proposed evidence. In accordance with the ensuing stipulation filed by the parties, the Court set the matter for an evidentiary hearing on December 6, 2013- and also set the related deadlines. At the request of the parties, the evidentiary hearing subsequently was continued to March 18, 2014. However, it then became necessary to continue that date pending the District Judge’s determination of petitioner’s objections to the Court’s January 8, 2014 rulings on respondent’s objections to petitioner’s witness list and on related eviden-tiary issues. After the District Judge issued an Order on March 11, 2014 affirming this Court’s January 8, 2014 rulings, the Court reset the evidentiary hearing for August 13, 2014, The hearing took place on that date and, at its conclusion, the Court set a post-hearing briefing schedule.

On October 15, 2014, petitioner filed a Post-Hearing Brief (“Pet, PH Brief’), which included objections to the February 9, 2011 Report and Recommendation. Respondent filed his Post-Hearing Brief (“Resp, PH Brief’), including a response to petitioner’s objections to the February 9, 2011 Report and Recommendation, on November 17, 2014. Petitioner filed a Reply thereto (“Pet. PH. Reply Brief’) on November 25,2014.

Thus, the record before the Court is now fully developed with respect to the issue of whether petitioner’s Motion to Amend should be granted with respect to Grounds 10-21 of the proposed Amended Petition. For the reasons discussed hereafter, the Court now recommends (a) that petitioner’s Motion to Amend' be denied with respect to Grounds 10, 12-18, and 20-21 of the proposed Amended Petition bécause amendment would be futile since those claims are time barred; (b) that petitioner’s Motion to Amend be denied with respect to Ground 11 of the proposed Amended Petition because amendment would be futile since that claim is procedurally defaulted; and (c) that petitioner’s Motion to Amend be denied with respect to Ground 19 of the proposed Amended Petition because amendment would be futile since that claim is devoid of merit.

PROCEDURAL HISTORY

On April 28, 2006, petitioner was convicted by a Los Angeles County Superior Court jury of first degree murder. (See 5 Reporter’s Transcript on Appeal [“RT”] 3603-06; 1 Clerk’s Transcript [“CT”] 186-88.) On August 16, 2007, after hearing and denying petitioner’s motion for a new trial based on juror misconduct and insufficiency of the evidence, the trial court sentenced petitioner to state prison for an indeterminate term of 25 years to life. (See 5 RT 3901-09; 2 CT 302-04.)

Petitioner appealed from the judgment of conviction, raising claims generally corresponding to the third, fourth, fifth, and sixth grounds for relief alleged in petitioner’s original Petition herein (which encompass Grounds 4-9 of petitioner’s Amended Petition). (See respondent’s Notice of Lodging, Lodged Document [“LD”] A, C.) On December 30, 2008, in an unpublished decision, the California Court of Appeal rejected petitioner’s claims and affirmed the judgment. (See LD D, E.)

While his direct appeal was pending, petitioner (through counsel) filed a petition for writ of habeas corpus in the California Court of Appeal, in which he alleged claims generally corresponding to the first and second grounds for relief alleged in petitioner’s original Petition herein (which encompass Grounds 1-3 of petitioner’s Amended Petition). (See LD F.) Following respondent’s filing of an informal response at the Court of Appeal’s direction (see LD G), and petitioner’s letter reply thereto (see LD H), the Court of Appeal issued an Order on December 30, 2008 (the same date as its decision on direct appeal) denying petitioner’s habeas petition, in part with a reasoned decision. (See LD I.)

On February 11, 2009, petitioner (through counsel) petitioned the California Supreme Court for review of the Court of Appeal’s decision on direct appeal. (See LD J.) Concurrently, he also (through counsel) petitioned the California Supreme Court for review of the Court of Appeal’s denial of his habeas petition. (See LD L.) On April 1, 2009, the California Supreme Court issued separate orders summarily denying both petitions without comment or citation of authority. (See LD K, M, N.)

On or about December 1, 2009, petitioner constructively filed a pro se motion in the trial court requesting post-conviction discovery, which the trial court denied on December 7, 2009. (See Exhibits to LD O.) Petitioner then constructively filed a pro se habeas petition in the California Supreme Court on January 6, 2010 (proof of service date), in which the sole claim alleged was that the trial court had erred in denying petitioner’s motion for post-conviction discovery. (See LD 0.) This claim generally corresponds to Ground 21 of the proposed Amended Petition herein.

While that California Supreme Court ha-beas petition was pending, petitioner constructively filed another habeas petition in the California Supreme Court on or about March 25, 2010 (signature date). Petitioner alleged therein claims that generally correspond to Grounds 10-20 of petitioner’s proposed Amended Petition herein. (See LD Q.)

While both of his California Supreme Court habeas petitions were pending, petitioner filed his original Petition herein on March 31, 2010. The signature date on the Petition, and thus the earliest date on which it could have been turned over to the prison authorities for mailing, was March 25, 2010.

In two separate orders issued on September 15, 2010, the California Supreme Court summarily denied both of petitioner’s habeas petitions, in each case citing In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993). (See LD T, U.)

THE REMAINING CLAIMS ALLEGED IN PETITIONER’S PROPOSED AMENDED PETITION

As noted above, the Court previously granted petitioner’s Motion to Amend, to the extent that the Motion to Amend sought to amend Grounds 1-6 of petitioner’s original Petition by realleging instead Grounds 1-9 of petitioner’s Amended Petition. The Court subsequently issued a Partial Report and Recommendation in which it recommended that Grounds 1-9 of petitioner’s Amended Petition be denied. The Court’s findings and recommendations in the Partial Report and Recommendation ultimately were accepted by the then-assigned District Judge.

The remaining claims alleged in petitioner’s proposed Amended Petition, as to which the Court deferred ruling on petitioner’s Motion to Amend, are as follows: prosecutor’s false and/or misleading statements. (See Am. Pet. at 6c; see also Am. Pet. Attach, at 112-15.)

10. The trial court’s failure to bifurcate the proceedings denied petitioner due process of law. (See Am. Pet. at 6b; see also Am. Pet. Attach, at 66-81.)

11. The prosecution’s introduction of bad character evidence during its case in chief constituted evidentiary error. (See Am. Pet. at 6b; see also Am. Pet. Attach. at 82-85.)

12. Trial counsel provided ineffective assistance by failing to investigate and assert a crucial or potentially meritorious alibi and/or mistaken identity defense relating to the time petitioner arrived at the video store. (See Am. Pet. at 6c; see also Am. Pet. Attach, at 86-105.)

13. The prosecutor committed misconduct by making false and/or misleading statements during closing argument. (See Am. Pet. at 6c; see also Am. Pet. Attach, at 106-11.)

14. Trial counsel provided ineffective assistance by failing to object to the

15. Trial counsel provided ineffective assistance in failing to file a Pitcfiess motion, and failing to seek and use information bearing on the credibility of the police officer witnesses and prosecution witnesses Robles and Lopez. {See Am. Pet. at 6d; see also Am. Pet. Attach, at 116-24.)

16. Trial counsel provided ineffective assistance in failing to secure the services of a psychologist to testify regarding the psychological factors that affect the accuracy of eyewitness identifications. (See Am. Pet. at 6d; see also Am. Pet. Attach, at 12480.)

17. Trial counsel deprived petitioner of a crucial or potentially meritorious defense by failing to put on demonstrative evidence and/or failing to make a motion for the jury to be taken to the scene and placed under the same identifying circumstances as the prosecution’s witnesses, which would have proven that all of the witnesses lied and fabricated their stories. (See Am. Pet. at 6d; see also Am. Pet, Attach, at 180-83.)

18. Trial counsel deprived petitioner of a crucial or potentially meritorious defense by failing to investigate adequately the legal and factual grounds for making a motion to exclude Lopez’s in-court identification of petitioner. (See Am. Pet. at 6e; see also Am. Pet. Attach. at 184-87.)

19. Trial counsel provided ineffective assistance by failing to make a motion to exclude Renteria’s “suggestive” and/or tainted in-court identification testimony. (See Am. Pet. at 6e; see also Am. Pet. Attach, at 187-209.)

20. The cumulative effect of the errors operated to produce a fundamentally unfair trial, in violation of petitioner’s federal constitutional right to due process. (See Am. Pet. at 6e; see also Am. Pet. Attach, at 209-13.)

21. The trial court erred in denying petitioner’s motion for postconviction discovery. (See Am. Pet. at 6f; see also Am. Pet. Attach, at 213-21.)

DISCUSSION

I. Petitioner’s Motion to Amend should be denied with respect to Grounds 10, 12-18, and 20-21 of the proposed Amended Petition because those claims are time barred and amendment therefore would be futile.

Since petitioner’s original Petition was filed after the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) on April 24, 1996, it is subject to the AED-PA’s one-year limitation period, as set forth at 28 U.S.C. § 2244(d). As noted above, where a district court stays a fully exhausted petition pursuant to the Kelly procedure, the newly exhausted claims do not necessarily relate back to the filing of the original Petition for purposes of satisfying the one-year statute of limitations.

In respondent’s original opposition to petitioner’s Motion to Amend, respondent first addressed the timeliness of the proposed Amended Petition and then addressed the issue of whether, for purposes of the one-year statute of limitations, the new claims alleged in the Amended Petition relate back to the claims alleged in petitioner’s original Petition. However, since respondent has never .disputed that the original Petition was timely filed, the Court has decided to address the relation back issue first.

A. Except for Grounds 11 and 19, none of the new claims alleged in the Amended Petition relates back to the filing of petitioner’s original Petition.

Under Mayle, 545 U.S. at 662, 125 S.Ct. 2562, claims asserted after the one-year limitation period has expired do not relate back “simply because they relate to the same trial, conviction, or sentence as a timely filed claim.” The Supreme Court held that “[a]n amended habeas petition does not relate back (and thereby escape AEDPA’s one-year time limit) when it asserts a new ground for relief supported by facts that differ, in both time and type from those the original pleading set forth.” Id. at 650, 125 S.Ct. 2562. Only if “the original and amended petitions state claims that are tied to a common core of operative facts” will relation back be in order. See id. at 664, 125 S.Ct. 2562.

Thus, in Mayle, the Supreme Court concluded that the petitioner’s amended petition, which raised a Fifth Amendment claim directed to the admission of evidence of his pretrial statements, did not relate back to his original petition, which raised only a Sixth Amendment confrontation clause claim directed to the admission of videotaped witness testimony. See Mayle, 545 U.S. at 648-49, 125 S.Ct. 2562. The two claims were “separated in time and type” because the new claim arose from petitioner’s own pretrial statements and the original claim arose from another witness’s videotaped statements. See id. at 657,125 S.Ct. 2562; see also, e.g., Schneider v. McDaniel,, 674 F.3d 1144, 1150-52 (9th Cir.) (claim challenging trial court’s denial of severance motion did not relate back to original ineffective assistance of counsel claim for failing to file timely motion for severance), cert. denied, 568 U.S. 1001, 133 S.Ct. 579, 184 L.Ed.2d 380 (2012); Rhoades v. Henry, 598 F.3d 511, 520 (9th Cir.2010) (prosecutorial misconduct claims did not relate back to claims alleged in original petition concerning police misconduct, jailhouse informant testimony, and alleged judicial bias); Hebner v. McGrath, 543 F.3d 1133 (9th Cir.2008), cert. denied, 557 U.S. 906, 129 S.Ct. 2791, 174 L.Ed.2d 294 (2009) (claim challenging jury instruction concerning prior sexual misconduct given at close of evidence did not relate back to claim alleged in original petition challenging only the admissibility at trial of evidence of that conduct).

Here, petitioner alleged the following six grounds for relief in his original Petition:

1. Petitioner’s constitutional right to due process of law and a fair trial was violated “when false evidence was introduced at trial during the testimony of Maria Renteria.” {See Pet. at ¶ 7.a; see also Attached Memorandum of Points and Authorities (“Pet. Attach.”) at 17-22.)

2. Ineffective assistance of counsel when “counsel failed to investigate the fact[s], to present evidence that Rente-ria was 128 feet away, to present evidence that it is impossible to see the driver under the circumstances Renteria described, [and] to adequately question Renteria and produce impeachment evidence.” (See Pet. at ¶ 7.b; see also Pet. Attach, at 22-27.)

3. Petitioner’s constitutional rights to a fair trial, an impartial jury, and due process were violated when “the jury received prejudicial information about petitioner’s prior criminal history that had not been presented at trial during its deliberations.” (See Pet. at ¶ 7.c; see also Pet. Attach, at 27-29, 30-38, 44-54.)

4. Prosecutorial misconduct when “the prosecutor placed before the jury inadmissible evidence about petitioner’s criminal history, [and] also reference[d] petitioner having been booked/arrested” several times during the examination of Deputy Steven Marella. (See Pet. at ¶ 7.d; see also Pet. Attach, at 38-42.)

5. Jury misconduct based on the jury’s inadvertent receipt of petitioner’s criminal history. (See Pet. at ¶ 7.e.)

6. Ineffective assistance of trial counsel when trial counsel failed to object to the evidence of petitioner’s criminal history. (See Pet. at ¶ 7.f; see also Pet. Attach, at 42-44.)

The first and second grounds related to Renteria’s testimony, and specifically her ability to perceive the matters about which she testified, including her identification of petitioner. Of the twelve new claims alleged in the proposed Amended Petition, only one related to Renteria’s testimony and even arguably is tied to the same common core of operative facts as the first and second grounds for relief alleged in petitioner’s original Petition. In Ground 19 of his proposed Amended Petition, petitioner claims that trial counsel provided ineffective assistance by failing to make a motion to exelude Renteria’s “suggestive” and/or tainted in-court identification testimony. Based on its comparison of the facts stated in support of Ground 19 of the proposed Amended Petition to the facts stated in support of the first two grounds for relief alleged in the original Petition, the Court finds that the Mayle standard for relation back is met with respect to Ground 19 of the Amended Petition.

The remaining grounds for relief alleged in the original Petition related to (a) the jury’s consideration during deliberations of an exhibit that reflected petitioner’s criminal history record, and (b) the prosecutor’s reference to petitioner having been “booked/arrested” several times during the examination of Deputy Steven Marella. Of the twelve new claims alleged in the Amended Petition, only one related to (a) or (b) and even arguably is tied to the same common core of operative facts as (a) or (b). In Ground 11 of his proposed Amended Petition, petitioner claims that the prosecution’s introduction of bad character evidence during its case in chief constituted evidentiary error. Based on its comparison of the facts stated in support of Ground 11 of the proposed Amended Petition to the facts stated in support of the fourth ground for relief alleged in the original Petition, the Court finds that the Mayle standard for relation back is met with respect to Ground 11 of the Amended Petition.

In his Post-Hearing Brief, petitioner does not even make a relation back argument with respect to Grounds 10 and 20-21 of the proposed Amended Petition. However, petitioner does contend that the new ineffective assistance of trial counsel claims alleged as Grounds 12 and 14-18 of the proposed Amended Petition relate to a common core of operative facts presented in Grounds 1 and 2 of his original Petition, namely trial counsel’s failure to effectively investigate this case. (See Pet. PH Brief at 9-10.) The fallacy of this contention is that every instance of ineffective assistance of trial counsel, no matter at what stage of the proceedings or what particular actions of counsel it relates to, could be characterized as relating to trial counsel’s failure to effectively investigate the case. Moreover, petitioner’s argument that “[i]n-effective assistance of counsel should be viewed as a single claim or ground with each allegation of ineffectiveness falling under the single claim” flies in the face of case authority from other Circuits and unpublished Ninth Circuit authority holding that, under Mayle’s same “time and type” standard, “[n]ew claims of ineffective assistance of counsel do not automatically relate back to prior ineffective assistance claims simply because they violate the same constitutional provision.” See, e.g., United States v. Gonzalez, 592 F.3d 675, 680 (5th Cir.2009), cert. denied, 562 U.S. 900, 131 S.Ct. 231, 178 L.Ed.2d 153 (2010); United States v. Hernandez, 436 F.3d 851, 858 (8th Cir.), cert. denied, 547 U.S. 1172, 126 S.Ct. 2341, 164 L.Ed.2d 856 (2006); United States v. Ciampi, 419 F.3d 20, 24 (1st Cir.2005), cert. denied, 547 U.S. 1217, 126 S.Ct. 2906, 165 L.Ed.2d 936 (2006); see also United States v. Marulanda, 226 Fed. Appx. 709, 711 (9th Cir.2007) (claim that trial counsel rendered ineffective assistance by referring to the defendant’s previous trial on the same charge did not relate back to claims that trial counsel rendered ineffective assistance of counsel by insulting the judge, failing to object to the jury selection process, failing to inform the defendant of his right to testify, and failing to object to the prosecution’s use of word “Columbian” at trial).

Here, petitioner’s initial ineffective assistance of counsel claim arose out of trial counsel’s alleged failure to investigate and present evidence that Renteria’s identification was not credible. The new ineffective assistance of counsel claims alleged in the proposed Amended Petition arise out of completely different operative facts: trial counsel’s alleged failure to investigate and assert a crucial or potentially meritorious alibi and/or mistaken identity defense relating to the time petitioner arrived at the video store (Ground 12); trial counsel’s failure to object to the prosecutor’s allegedly false and/or misleading statements during closing argument regarding when and how long petitioner was inside the video store (Ground 14); trial counsel’s failure to file a Pitchess motion, and failure to seek and use information bearing on the credibility of the police officer witnesses and prosecution witnesses Robles and Lopez (Ground 15); trial counsel’s failure to secure the services of a psychologist to testify regarding the psychological factors that affect the accuracy of eyewitness identifications (Ground 16); trial counsel’s failure to put on demonstrative evidence and/or failure to make a motion for the jury to be taken to the scene and placed under the same identifying circumstances as the prosecution’s witnesses (Ground 17); and trial counsel’s failure to investigate adequately the legal and factual grounds for making a motion to exclude Lopez’s in-court identification of petitioner (Ground 18). The Court finds that none of these other new ineffective assistance of counsel claims even arguably is tied to the same common core of operative facts as either the first and second, or the remaining grounds for relief alleged in the original Petition.

In his Post-Hearing Brief, petitioner additionally contends that Grounds 12,15,18, and 20-21 of the proposed Amended Petition also relate back to Grounds 1 and 2 of his original Petition “through Detective Steven Katz,” because “[i]t is Detective Katz who was the lead investigator on this case and presented to the prosecutor the four eyewitnesses, including Maria Rente-ria,” and who “knew or should have known that her identification was fabricated.” (See Pet. PH Brief at 10.) As respondent points out, the fallacy of this contention is that nearly every issue in a case would relate back to nearly every other issue since the investigating officer is often involved in most evidence presented at trial. Further, petitioner has failed to cite any legal precedent supportive of this relation-back theory.

Accordingly, the Court finds that, under Mayle’s same “time and type” standard, the only new claims alleged in the proposed Amended Petition that relate back to the grounds for relief alleged in the original Petition are Grounds 11 and 19.

B. The unrelated claims alleged in the Amended Petition are time barred.

28 U.S.C. § 2244(d)(1) provides:

“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 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.”

1. Unless a basis for tolling the statute existed, petitioner’s last day to file a federal habeas petition containing his unrelated claims ivas June 30, 2010.

Here, petitioner’s judgment of conviction became final on June 30, 2009, when the 90-day period expired for petitioner to petition the United States Supreme Court for a writ of certiorari from the denial of his Petition for Review. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir.1999); Calderon v. United States District Court for the Central District of California (Beeler), 128 F.3d 1283, 1286 n. 2 (9th Cir.1997), cert. denied, 522 U.S. 1099, 118 S.Ct. 899, 139 L.Ed.2d 884 and 523 U.S. 1061, 118 S.Ct. 1389, 140 L.Ed.2d 648 (1998).

In his original Reply to respondent’s opposition to his Motion to Amend, petitioner did not contend that he was impeded from filing his federal petition by unconstitutional state action and thereby entitled to a later trigger date under § 2244(d)(1)(B). Nor did petitioner contend, with respect to any of his unrelated claims, that he was entitled to a later trigger date under § 2244(d)(1)(C) because his claim is based on a federal constitutional right that was initially recognized by the United States Supreme Court subsequent to the date his conviction became final and that has been made retroactively applicable to cases on collateral review. To the extent that petitioner’s contention that he had been conducting an “ongoing investigation” of the facts and the law (see Reply at 6-11) was intended as an argument that petitioner was entitled to a later trigger date under § 2244(d)(1)(D), the Court notes that the statute of limitations begins to run when a prisoner “knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance.” See Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001). Thus, with respect to the unrelated claims alleged in petitioner’s proposed Amended Petition (i.e., Grounds 10, 12-18, and 20-21), the Court finds that petitioner either was aware or through diligence could have been aware of the facts underlying all of those claims as of June 30, 2009, when his judgment of conviction became final. For example, as of the time of trial, petitioner was aware that the trial court had failed to bifurcate the proceedings; and that his counsel had failed to file a Pitchess motion, failed to secure the services of an eyewitness identification expert, failed to put on demonstrative evidence or move for the jury to be taken to the crime scene, and failed to make a motion to exclude Lopez’s in-court identification. Moreover, by June 30, 2009, when the judgment of conviction became final, trial counsel already had turned over to petitioner all of his files and records, and sent to petitioner copies of the Blockbuster tapes showing the time petitioner arrived at the video store. (See Reply at 6, 9-10.)

Accordingly, the Court finds that, unless a basis for tolling the statute existed, petitioner’s last day to file a federal habeas petition containing his unrelated claims was June 30, 2010. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.2001); Beeler, 128 F.3d at 1287-88.

The burden of demonstrating that the AEDPA’s one-year limitation period was sufficiently tolled, whether statutorily or equitably, rests with the petitioner. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir.2005) (as amended); Smith, 297 F.3d at 814; Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir.2002). For the reasons discussed hereafter, the Court finds and concludes that, with respect to his unrelated claims, petitioner has not met his burden.

2. Petitioner has not met his burden of demonstrating that statutory tolling rendered the lodging for filing of the Amended Petition herein timely.

28 U.S.C. § 2244(d)(2) provides:

“The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”

In Nino v. Galaza, 183 F.3d 1003 (9th Cir.1999), cert. denied, 529 U.S. 1104, 120 S.Ct. 1846, 146 L.Ed.2d 787 (2000), the Ninth Circuit construed the foregoing statutory tolling provision with reference to California’s post-conviction procedures. The Ninth Circuit held that “the AEDPA statute of limitations is tolled for ‘all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.’ ” See id. at 1006.

In Carey v. Saffold, 536 U.S. 214, 219-21, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002), the Supreme Court held that, for purposes of statutory tolling, a California petitioner’s application for collateral review remains “pending” during the intervals between the time a lower state court denies the application and the time the petitioner files a further petition in a higher state court. However, such interval or “gap” tolling is unavailable if the petitioner unreasonably delays in seeking higher court review after a lower court petition is denied. See id. at 225-26, 122 S.Ct. 2134.

Here, petitioner is not entitled to any statutory tolling for his first round of state habeas petitions commencing with the filing of his Court of Appeal habeas petition during the pendency of his direct appeal because that round of collateral review was concluded prior to the commencement of the limitation period when, on April 1, 2009, the California Supreme Court denied the Petition for Review from the Court of Appeal’s denial order.

Further, petitioner is not entitled to any statutory tolling for the interval preceding the filing of either of his 2010 California Supreme Court habeas petitions. See King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003) (holding that when a petitioner files two rounds of state petitions, and either the second round of petitions are denied as untimely, or the second round of petitions are not limited to an elaboration of the facts relating to the claims raised in the first round of petitions, the gap between the two rounds is not tolled under any circumstance); Dils v. Small, 260 F.3d 984, 986 (9th Cir.2001) (no interval tolling accorded for interval between successive California Supreme Court habeas petitions); see also, e.g., Gaston, 417 F.3d at 1043 (“a California habeas applicant is not entitled to interval tolling if he abandons all of his claims in his first state habeas application and his second state habeas application sets forth new and different claims”).

The Court also finds that petitioner is not entitled to any statutory tolling for the pendency of his California Supreme Court habeas petition directed to the trial court’s denial of his motion for post-conviction discovery since that petition did not challenge the legality of petitioner’s conviction or sentence. Rather, it merely sought an order to provide discovery that petitioner maintained he would need in order to prepare a subsequent collateral challenge of his conviction. That first 2010 habeas petition therefore did not qualify as a post-conviction application for collateral review within the meaning of 28 U.S.C. § 2244(d)(2). See Ramirez v. Yates, 571 F.3d 993, 999-1000 (9th Cir.2009) (holding that petitioner not entitled to statutory tolling for discovery motions that did not challenge the conviction, but simply sought material the petitioner claimed might be of help in later state proceedings).

Respondent contends that petitioner is not entitled to statutory tolling for either of his 2010 California Supreme Court ha-beas petitions because both were denied with citations to In re Clark, which according to respondent signified that they were being denied as untimely and therefore did not qualify as having been “properly filed” within the meaning of § 2244(d)(2). (See Opp. at 6-7; Resp. PH Brief at 22-24.) In Pace, 544 U.S. at 417, 125 S.Ct. 1807, the Supreme Court held that “time limits, no matter their form, are ‘filing’ conditions,” and that “[b]ecause the state court rejected petitioner’s [state] petition as untimely, it was not ‘properly filed,’ and he is not entitled to statutory tolling under § 2244(d)(2).” See also Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir.2005) (“Under Pace, if a state court denies a petition as untimely, none of the time before or during the court’s consideration of that petition is statutorily tolled.”).

Petitioner maintains that the California Supreme Court’s citations to In re Clark without a pinpoint citation in its denial orders was “ambiguous” and insufficient to signify that the petitions were being denied for untimeliness since In re Clark also stands for other propositions. (See Reply at 23-24; see also Pet. PH Brief at 33.) Petitioner is mistaken. As the Ninth Circuit has recognized in several cases, the California Supreme Court’s citation to In re Clark without a pinpoint citation signifies that the petition is being denied for untimeliness. See Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir.) (holding that statutory tolling unavailable because, in denying the petitioner’s final state habeas petition, “the California Supreme Court cited its decision of In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (Cal.1993), which dealt specifically with the bar of untimeliness” (internal quotation marks omitted)), cert. denied, 564 U.S. 1026, 131 S.Ct. 3039, 180 L.Ed.2d 858 (2011); Park v. California, 202 F.3d 1146, 1152 n. 3 (9th Cir.2000) (noting that In re Clark “dealt specifically with the bar of untimeliness”); see also Alvarez v. Wong, 425 Fed.Appx. 652, 652-53 (9th Cir.) (noting that California Supreme Court’s citation to In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993) “signals the court’s conclusion that the petition was untimely”), cert. denied, 565 U.S. 884, 132 S.Ct. 255, 181 L.Ed.2d 148 (2011); Wafer v. Adams, 329 Fed.Appx. 83, 84 (9th Cir.2009) (petitioner not entitled to statutory tolling because the California Supreme Court’s citation to In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993) “reflected the intention to dismiss [his] second and third state habeas petitions as untimely”).

Accordingly, the Court concurs with respondent that petitioner is not entitled to any statutory tolling of the limitation period.

3. Petitioner has not met his burden of demonstrating entitlement to sufficient equitable tolling to render the filing of the original Petition herein timely.

The Supreme Court has held that the AEDPA’s one-year limitation period also is subject to equitable tolling in appropriate cases. See Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010). However, in order to be entitled to equitable tolling, the petitioner must show both that (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented his timely filing. See Holland, 130 S.Ct. at 2562 (quoting Pace, 544 U.S. at 418, 125 S.Ct. 1807). The Ninth Circuit has held that the Pace standard is consistent with the Ninth Circuit’s “sparing application of the doctrine of equitable tolling.” See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 558 U.S. 897, 130 S.Ct. 244, 175 L.Ed.2d 167 (2009). Under Ninth Circuit authority, “[t]he petitioner must show that ‘the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.’” See Porter, 620 F.3d at 959; Ramirez, 571 F.3d at 997. “[T]he threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.” Miranda, 292 F.3d at 1066, Thus, as the Ninth Circuit has recognized, equitable tolling will be justified in few cases. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003); see also Waldron-Ramsey, 556 F.3d at 1011 (“To apply the doctrine in ‘extraordinary circumstances’ necessarily suggests the doctrine’s rarity, and the requirement that extraordinary circumstances ‘stood in his way’ suggests that an external force must cause the untimeliness, rather than, as we have said, merely ‘oversight, miscalculation or negligence on [the petitioner’s] part, all of which would preclude the application of equitable tolling.’ ”),

Petitioner’s contention in his Reply to the effect that he has been diligent in conducting his “ongoing investigation,” even if credited, only goes to the first of the two requisite showings for equitable tolling. Petitioner still’ must show that some extraordinary circumstance stood in his way and prevented his timely filing. The lack of the post-conviction discovery sought by petitioner from the state courts did not stand in his way. Even without such discovery, petitioner was able to prepare and file his 2010 state habeas petitions raising his unrelated claims. Nor does the fact that petitioner is “unversed in the law and the methods of legal research” (see Reply at 11) entitle him to any equitable tolling. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.2006) (holding that “a pro se petitioner’s lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling” of the AEDPA limitations period); Gazzeny v. Yates, 2009 WL 294199, *6 (C.D.Cal. Feb. 4, 2009) (noting that “[a] prisoner’s illiteracy or ignorance of the law do not constitute extraordinary circumstances” for purposes of tolling of the AEDPA statute of limitations); Ekenberg v. Lewis, 1999 WL 13720, *2 (N.D.Cal. Jan. 12,1999) (“Ignorance of the law and lack of legal assistance do not constitute such extraordinary circumstances.”); Bolds v. Newland, 1997 WL 732529, *2 (N.D.Cal. Nov. 12, 1997) (“Ignorance of the law and lack of legal assistance do not constitute such extraordinary circumstances.”); see also Hinton v. Pacific Enterprises, 5 F.3d 391, 396-97 (9th Cir.1993) (mere ignorance of the law generally is an insufficient basis to equitably toll the running of an applicable statute of limitations), cert. denied, 511 U.S. 1083, 114 S.Ct. 1833, 128 L.Ed.2d 462 (1994); Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir.1991) (holding that neither “lack of knowledge of applicable filing deadlines,” nor “unfamiliarity with the legal process,” nor “lack of representation during the applicable filing period,” nor “illiteracy,” provides a basis for equitable tolling).

In his Post-Hearing Brief, petitioner contends the “misdeeds” of his state habe-as (“PCR”) counsel was sufficiently egregious to warrant equitable tolling of the limitation period under the extraordinary circumstances standard. In this regard, petitioner contends that, “[o]ver a course of many years, PCR counsel: discounted [petitioner’s] repeated requests for assistance with obtaining surveillance video from the Blockbuster parking structure ... ignored [petitioner’s] request to secure the exculpatory Blockbuster Video that was in the record and being held by the superior court; failed to research the applicable law; recklessly advised [petitioner] about the AEDPA statute of limitations; and failed to include a potentially meritorious argument in her appellate and habeas briefs, namely that [petitioner] could not have committed the crime and walked into Blockbuster at approximately 9:17 p.m.” (See generally Pet. PH Brief at 20-29; see also Pet. PH Reply Brief at 4.)

The law is well established that, while egregious attorney misconduct can qualify as an “extraordinary circumstance” that can warrant equitable tolling, a “garden variety claim” of attorney negligence does not warrant equitable tolling. See, e.g., Holland, 130 S.Ct. at 2563-64 (noting that “a garden variety claim of excusable neglect,”, such as a simple “miscalculation” that leads a lawyer to miss a filing deadline, does not warrant equitable tolling); Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir.2011) (“Equitable tolling may be warranted in instances of unprofessional attorney behavior; however, the AEDPA deadline -will not be tolled for a garden variety claim of excusable attorney neglect.”); Velasquez v. Kirkland, 639 F.3d 964, 969 (9th Cir.2011) (for equitable tolling, a habeas petitioner “must have been , delayed by circumstances ‘beyond [his] direct control,’ and not by his or his counsel’s ‘own mistake’”); Spitsyn, 345 F.3d at 800 (‘We have not applied equitable tolling in non-capital cases where attorney negligence has caused the filing of a petition to be untimely.”).

For example, in Holland, the Supreme Court held that the facts before the court, which required further development on remand, were sufficient to “suggest” far more than “garden variety” negligence or “excusable neglect.”, There, the attorney had failed to file the petitioner’s federal petition on time despite the petitioner’s many letters-that repeatedly emphasized the importance of his doing so. The attorney apparently did not do the research necessary to find out the proper filing date, despite the petitioner’s letters that went so far as to identify the applicable legal rules. The attorney failed to inform the petitioner in a timely manner about the crucial fact that the Florida Supreme Court had decided his case, again despite the petitioner’s many pleas for that information. And, the attorney failed to communicate with his client over a period of years, despite various pleas from the petitioner that the attorney respond to his letters. The Supreme Court also indicated the extraordinary nature of the attorney’s conduct was supported by the fact that the attorney’s conduct violated fundamental canons of professional responsibility. See Holland, 130 S.Ct. at 2564.

In Spitsyn, the attorney was retained to file petitioner’s federal habeas petition a full year in advance of the deadline, but completely failed to prepare or file a petition even though the attorney was contacted numerous times by both the petitioner and his mother seeking action, and a grievance was filed with the state bar association complaining about the lack of response. Also, despite a letter terminating the representation and requesting the return of the file, the attorney retained the file for the duration of the limitation period and more than two months beyond. The Ninth Circuit held that this conduct was sufficiently egregious to justify equitable tolling, although it remanded for further consideration of the issue of petitioner’s diligence. See Spitsyn, 345 F.3d at 798, 801-02.

In Doe, the petitioner hired his former counsel to file a federal habeas petition more than one year prior to the AEDPA deadline, and paid him a $20,000 advance for this service. The petitioner provided the attorney with his files and repeatedly made inquiries on the progress of his case. Not only did the attorney not file a timely habeas petition, he filed no petition at all, in spite of his numerous promises to the contrary. When the petitioner eventually sought his files from the attorney, the attorney took six months to return them. The Ninth Circuit found that these circumstances were far more egregious than those encountered in Spitsyn. See Doe, 661 F.3d at 1012.

Here, by way of contrast to Holland, Spitsyn, and Doe, and to the other cases cited by petitioner, petitioner was not relying on his PCR counsel to file a timely federal habeas petition. Moreover, all of PCR counsel’s alleged misdeeds relating to the Blockbuster video about which petitioner is complaining predated the commencement of the limitation period on June 9, 2009. As of that date, petitioner had had in his possession for several months all of the files and records he had requested from his PCR counsel; petitioner also had had in his possession since April 20, 2009 the report from his video expert upon which his so-called alibi defense was predicated. (See Exh. B to Pet. PH Reply Brief.) Therefore, none of PCR counsel’s alleged misdeeds relating to the Blockbuster video was the cause of the untimeliness of the proposed Amended Petition.

Further, the Court disagrees with petitioner that he is entitled to equitable tolling because his PCR counsel provided him with “grossly reckless advice concerning exhaustion and the AEDPA statute of limitations.” It was not a misstatement of the law for PCR counsel to advise petitioner repeatedly that any claims he raised in his federal habeas petition had to be first exhausted in the state courts. Mor