Sirhan v. Galaza (76 F. Supp. 3d 1073, 2015)

ORDER RE: ACCEPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE AND DENYING PETITION FOR WRIT OF HABEAS CORPUS

BEVERLY REID O’CONNELL, District Judge.

I. INTRODUCTION

“This case may be the final chapter in an American tragedy.” (Dkt. No. 215 at 1.) Petitioner Sirhan B. Sirhan asks this Court to sustain his objections to the Magistrate Judge’s Report and Recommendations filed in his case and hold an evidentiary hearing based upon his claim of actual innocence. This Court conducted a de novo review of Petitioner’s objections. As explained below, Petitioner has failed to meet his burden of establishing actual innocence. Likewise, Petitioner has failed to demonstrate that he falls within the narrow exception warranting an evidentiary hearing at this stage. Accordingly, Petitioner’s objections are hereby OVERRULED.

II. PROCEDURAL HISTORY

On May 25, 2000, Sirhan B. Sirhan (“Petitioner”) filed a habeas corpus petition in the United States District Court for the Central District of California, Western Division. (Dkt. No. 1.) The matter was assigned to Magistrate Judge Andrew J. Wistrich. (Dkt. No. 2.) On August 18, 2000, District Judge Consuelo B. Marshall denied Petitioner’s motion to recuse all district and magistrate judges in the Central District of California. (Dkt. No. 13.) On November 30, 2000, Judge Marshall denied Petitioner’s motion for reconsideration. (Dkt. No. 24.) Judge Marshall then denied Petitioner’s motion for certification to file an interlocutory appeal on March 28, 2001, and the United States Court of Appeals denied Petitioner’s request for a writ of mandamus on May 20, 2001. (Dkt. Nos. 37, 47.)

On December 6, 2001, in accordance with extended time granted during the course of Petitioner’s recusal action, Respondents supplemented their answer to Petitioner’s habeas petition, arguing that the petition was barred as untimely based upon Petitioner’s habeas petition denied by the California Supreme Court in 1997. (Dkt. No. 38.) Judge Wistrich granted Petitioner extensions of time to respond until July 14, 2003. (Dkt. No. 55.)

On June 18, 2003, Petitioner moved to recuse Judge Wistrich or to transfer the case to the Eastern District of California. (Dkt. No. 56.) District Judge Christina A. Snyder granted Petitioner extensions of time and denied Petitioner’s motion for recusal or transfer on July 7, 2004. (Dkt. No. 81.) On February 16, 2005, Judge Snyder denied Petitioner’s motion for reconsideration. (Dkt. No. 91.)

On August 4, 2005, the Court received notice that Petitioner’s counsel was deceased. (Dkt. No. 96.) Judge Wistrich granted extensions of time until 2007, in consideration of Petitioner’s new counsel. (Dkt. No. 102.)

On March 13, 2007, Respondents filed a motion to dismiss Petitioner’s federal ha-beas petition based on the timeliness argument advanced in Respondents’ 2001 supplemental answer. (Dkt. No. 106.) On June 21, 2007, Petitioner’s counsel withdrew from the case, and counsel appearing for Petitioner pro hac vice filed six motions seeking an extension of time for Petitioner to respond. (Dkt. Nos. Ill, 133.) Petitioner timely filed his opposition on October 28, 2010, asserting that Petitioner’s actual innocence excepts him from the statutory limitation that otherwise would have begun to run upon denial of Petitioner’s state habeas petition. (Dkt. No. 135.)

Judge Wistrich granted Petitioner multiple extensions of time and, having reviewed Petitioner and Respondents’ filings, recommended the dismissal of Petitioner’s habeas matter on December 28, 2012. (Dkt. No. 198.) On April 3, 2013, Petitioner timely filed his objection, and Judge Wistrich affirmed his report and recommendation of dismissal on August 26, 2013. (Dkt. No. 207, 216.) The matter was assigned to this Court on May 10, 2013. (Dkt. No. 212.) This Court now considers Petitioner’s September 29, 2013 objections to Judge Wist-rich’s affirmed report and recommendation to dismiss. (Dkt. No. 218.)

Pursuant to 28 U.S.C. § 636, this Court has reviewed the Petition and other papers along with the attached Report and Recommendation of Judge Wistrich. The Court has also reviewed Petitioner Sirhan Bishar Sirhan’s objections and Respondent George Galaza’s response. Having so considered the significant number of filings and orders predating the Court’s receipt of this matter, the Court makes its determination de novo.

As is discussed below and in the Report and Recommendation, Petitioner’s habeas petition is untimely and fails to present evidence falling within the exception for actual innocence. The limitation period was not statutorily tolled during the pen-dency of the petitions filed in the California Court of Appeal or California Supreme Court. See Allen v. Siebert, 552 U.S. 3, 6-7, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007) (holding that a petition is not properly filed for purposes of statutory tolling if it is denied as untimely by state courts). Petitioner argues that he is entitled to equitable tolling because he has submitted evidence of actual innocence that was not presented at trial. (Dkt. No. 218 at 4.) Accordingly, Petitioner argues that the limitation period did not begin until the date on which he knew or should have known the factual basis for his claims. See 28 U.S.C. § 2244(d)(1)(D).

On August 26, 2013, Judge Wistrich filed a sixty-seven-page Report and Recommendation. (Dkt. No. 216.) On September 28, 2013, Petitioner filed a revised sixty-page brief detailing his objections. (Dkt. No. 218.) Having reviewed the evidence and filings in this case, the Court agrees with Judge Wistrich that Petitioner failed to meet the showing required for actual innocence. Accordingly, the Court adopts the Report and Recommendation from below and OVERRULES Petitioner’s objections. The Court will separately address Petitioner’s objections below. In addition, the Court DENIES Petitioner’s request for an evidentiary hearing.

III. LEGAL STANDARD

“The United States District Court for the Central District of California issued General Order 01-13, which fills in specific additional duties assigned to magistrate judges. Federal habeas corpus petitions and extradition proceedings are among the types of cases assigned to magistrates.” Wang v. Masaitis, 416 F.3d 992, 999 (9th Cir.2005). After being served a copy of the magistrate judge’s Report and Recommendation, “any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court.” 28 U.S.C. § 636(b)(1)(C). The district court’s role in reviewing a magistrate judge’s report and recommendation is set forth in 28 U.S.C. § 636(b)(1). The Court, after conducting its own de novo review, “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”- Id. The party making objections bears the burden of specifically identifying the portions of the report and recommendation to which it objects. See, e.g., United States v. Remsing, 874 F.2d 614, 616 (9th Cir.1989) (“[district court’s] function is to correct those findings made by the magistrate when the litigant has identified a possible error”). Under Rule 72(b), a district court may accept the findings and recommendations of the magistrate judge which have- drawn no objection, provided those findings are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 153-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

In McQuiggin v. Perkins, the Supreme Court held “that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar ... or ... [the] expiration of the statute of limitations.”—U.S.--, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013). To show actual innocence, “an otherwise time-barred habeas petitioner [must] dem-onstratef ] that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt.” Lee v. Lampert, 653 F.3d 929, 937 (9th Cir.2011); accord Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). After this showing, “the petitioner may pass through the Schlup gateway and have his constitutional claims heard on the merits.” Id. “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence— that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851.

“[W]here post-conviction evidence casts doubt on the conviction by undercutting the reliability of the proof of guilt, but not by affirmatively proving innocence, that can be enough to pass through the Schlup gateway to allow consideration of otherwise barred claims.” Lee, 653 F.3d at 938 (quoting Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir.2002) (en banc)). Nonetheless, “tenable actual-innocence gateway pleas are rare.” McQuiggin, 133 S.Ct. at 1928; accord House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (“[I]t bears repeating that the Schlup standard is demanding and permits review only in the extraordinary case.” (internal quotation marks omitted)).

Petitioner fails to meet the exacting standard set forth in McQuiggin and Lee to pass through the Schlup actual-innocence gateway. Though Petitioner advances a number of theories regarding the events of June 5, 1968, Petitioner does not dispute that he fired eight rounds of gunfire in the kitchen pantry of the Ambassador Hotel. (Dkt. No. 218 at 34 (“That he fired his gun eight times is not to be denied.... ”).) After reviewing the evidence, the Court agrees with the findings of Magistrate Judge Wistrich. Petitioner does not show that it is more likely than not that no juror, acting reasonably, would have found him guilty beyond a reasonable doubt. Thus, Petitioner does not fall within the “rare” category of petitioners who may pass through the Schlup actual-innocence gateway.

In objection to Judge Wistrich’s Report and Recommendation, Petitioner identifies a number of portions of the Report that he believes reveal inconsistencies and deficiencies undermining the Report. For the following reasons, the Court finds Petitioner’s objections to be without merit.

IV. OBJECTIONS

A. Eyewitness Testimony

Petitioner disputes the Report’s statement that “[i]nstead of shaking Senator Kennedy’s hand, Petitioner shot him.” (Dkt. No. 218 at 24; see Dkt. No. 216 at 1093.) According to Petitioner, if Petitioner had been facing the Senator so as to shake his hand, he could not have shot the fatal bullet. (Dkt. No. 218 at 24.) First, Petitioner cites the autopsy report, which concluded that the fatal bullet was fired in a “very slightly upward angle” from behind. (Dkt. No. 135 at 43; see Dkt. No. 134 at 105.) Petitioner then points to twelve eyewitness statements that “placet ][P]etitioner in front of Senator Kennedy when the shooting occurred.” (Dkt. No. 135 at 43.) Finally, Petitioner cites the absence of eyewitness testimony placing “[Petitioner behind Senator Kennedy at the time of the shooting.” (Dkt. No. 218 at 11-12.) Having established that he was initially in front of the Senator, Petitioner argues that it would have been impossible for him to shoot the fatal bullet. Yet Petitioner fails to address the chaos that ensued once Petitioner began shooting and the subsequent movements of the Senator and Petitioner in reaction to the shooting.

Establishing that Petitioner was initially in front of Senator Kennedy does not preclude him from firing the fatal shot. First, eyewitness testimony supports a finding that Senator Kennedy moved during or after the first shot. (See Dkt. No. 180-1 at 5-36; Dkt. No. 153-2 at 5-22, 29-41.) In fact, Mr. Uecker’s testimony described Senator Kennedy as turning his head just as the shots were fired. Second, none of the eyewitnesses saw Senator Kennedy sustain the fatal shot. Any estimates of muzzle distance or the angle of Petitioner’s gun were based on the position of the gun either before the shooting began or at the time of the first shot. While each statement initially places Petitioner in front of Senator Kennedy, they vary in describing the direction and distance between the two individuals. (See Dkt. No. 180-1 at 2-22.) Third, eyewitness statements paint a chaotic picture, which would undoubtedly make it difficult for eyewitnesses to gauge the exact locations of Petitioner and the Senator. All of this evidence was available to Petitioner at the trial. Even the declaration of Petitioner’s new witness, Ms. Nina Rhodes-Hughes, supports this characterization, as she describes how “bullets were flying seemingly everywhere” while a group of men attempted to subdue Petitioner. (Dkt. No. 218-1 ¶¶ 10-11.) Ms. Rhodes-Hughes describes how she fainted, was trampled by individuals in the kitchen, awoke with a wet dress, and had one shoe knocked off her foot. (Dkt. No. 218-1 ¶ 13.) A jury reasonably may have concluded that witnesses could not be expected to pinpoint the exact location of those two parties in the midst of such chaos.

Additionally, Petitioner takes issue with the Report’s statement that “numerous witnesses [saw] petitioner shoot Senator Kennedy.” (Dkt. No. 218 at 24; accord Dkt. No. 216 at 1094.) Petitioner argues that the Report contradicts itself because the Report later discloses that “eyewitnesses on whom petitioner relies did not actually see Senator Kennedy get shot.” (Dkt. No. 218 at 24-25; accord Dkt. No. 216 at 1112.) As established above, an eyewitness did not testify that he or she saw the fatal shot; eyewitnesses did testify, however, that they were present and saw Petitioner fire his gun. (See Dkt. No. 180-1 at 5-36; see also Dkt. No. 153-2 at 29-41.) Further, Petitioner admits that he “has never, and does not now, deny [sic] that he fired his weapon at the Ambassador Hotel that evening.” (Dkt. No. 135 at 22.) Due to the overwhelming testimony identifying Petitioner as a shooter, and Petitioner’s own admission regarding the use of his' gun, a reasonable jury could conclude that Petitioner fired the fatal shot.

As such, the Court finds these objections to the Report and Recommendation to be without merit.

B. Ms. Nina Rhodes-Hughes’s Declaration

Initially, Petitioner failed to submit a declaration from Ms. Nina Rhodes-Hughes. Now, attached to his objections, Petitioner provides a recent declaration. A “ ‘district court has discretion, but is not required, to consider evidence presented for the first time in a party’s objection to a magistrate judge’s recommendation.’ ” Brown v. Roe, 279 F.3d 742, 744 (9th Cir.2002) (quoting United States v. Howell, 231 F.3d 615, 621 (9th Cir.2000)). The Magistrate Judge considered this evidence in the interest of a thorough analysis. (Dkt. No. 216 at 1116 n. 26.) As explained below, the Court has also considered this late-filed declaration because it was briefed for the Magistrate Judge. The Court finds that it does not meet the showing required by Schlup to demonstrate actual innocence.

Ms. Rhodes-Hughes disputes the location and number of gunfire shots; yet, importantly, she does not assert that Petitioner is innocent. First, Ms. Rhodes-Hughes’s recollection was recorded decades after the events took place, which calls into question its reliability. (Dkt. No. 195 at 31.) Second, her declaration confirms that Petitioner was a shooter that evening. Ms. Rhodes-Hughes states that she was in the kitchen, she saw Petitioner fire his gun, and she witnessed men attempt to subdue him. (Dkt. No. 218-1 ¶¶ 8-9, 19.) Ms. Rhodes-Hughes does not state that she saw a second shooter. (Dkt. No. 218-1 ¶ 9.) She suggests that there was more than one shooter because she counted twelve to fourteen shots rather than eight, and she testifies that gunfire originated in both the left and right sides of the room. (Dkt. No. 218-1 ¶¶ 8-10.) Ms. Rhodes-Hughes avers that she heard only two or three shots coming from the vicinity of Petitioner, while several shots were fired in rapid succession from the opposite direction. (Dkt. No. 218-1 ¶¶ 8-11.) It is undisputed, however, that Petitioner fired all eight rounds of bullets from his gun. Ms. Rhodes-Hughes’s statements are insufficient to meet the actual innocence showing because, although they are inconsistent with other undisputed evidence, they do not exonerate Petitioner. Even considering these statements, it cannot be said that it is more likely than not that no juror, acting reasonably, would find Petitioner guilty beyond of a reasonable doubt.

C. Pruszynski Tape Recording

Petitioner objects to the Report’s treatment of the Pruszynski tape recording, arguing that the Report fails to address the merits of Phillip Van Praag’s recent analysis. (Dkt. No. 218 at 4-5.) During the shooting, a reporter named Stanislaw Pruszynski inadvertently left his tape recorder on and as a result captured the incident. Experts, such as Mr. Van Praag, have since analyzed the tape recording. Though the Report initially faults Petitioner for failing to exercise diligence in discovering the tape, it also addresses the merits of Mr. Van Praag’s analysis. The Report concludes that this evidence does not meet the showing required by Schlup for actual innocence. The Court agrees.

According to Petitioner, Mr. Van Praag’s analysis proves that a second gunman was present. Mr. Van Praag opines that more than thirteen shot sounds can be identified on. the tape recording. (Dkt. No. 180-1 at 44 ¶ 6(f).) Additionally, Mr. Van Praag concludes that there were two instances on the tape recording where two shots were fired very closely in time. According to Mr. Van Praag, it is unlikely that Petitioner’s inexpensive revolver could have fired this rapidly. (Dkt. No. 180-1 at 44 ¶ 6(f).) Finally, Mr. Van Praag detected frequency anomalies suggesting that more than one gun was used. (Dkt. No. 180-1 at 47 ¶ 6(i).) Petitioner relies heavily on these findings, but Mr. Van Praag’s findings have not been universally adopted.

Another expert, Mr. Phillip Harrison, examined' a dubbed copy of Mr. Pruszyn-ski’s tape recording and concluded that only eight shots were fired. (Dkt. No. 184 at 3.) According to Mr. Harrison, the other impulse sounds on the tape recording do not bear any resemblance to a .38 caliber shot, the type of gun carried by a security guard, or a .22 caliber shot, the type of gun carried by Petitioner. (Dkt. No. 185 ¶24, App. B at 280-82.) Mr. Harrison’s conclusions are consistent with and corroborate eyewitness testimony. Petitioner faults Mr. Harrison for bias and for drawing conclusions without knowing the exact positioning of Mr. Pruszynski’s microphone. (Dkt. Nos. 180 at 18-19, 218 at 4-5.) Similarly, Respondent faults Mr. Van Praag for making assumptions as to when Petitioner’s hand was pinned to the table as well as where the microphone was located. (Dkt. No. 184 at 2-3.) The Court need not resolve these discrepancies because it finds that Mr. Van Praag’s analysis cannot exonerate Petitioner.

Mr. Van Praag’s opinions do ndt disprove the conclusions of the 1975 Wenke commission regarding the ballistics evidence, (see infra Section II.E), the eyewitness testimony that Petitioner was ' the shooter, (Dkt. No. 180-1, Exs. A-B), the fact that Petitioner fired all eight bullets in his gun, (Dkt. No. 218 at 34), or Petitioner’s pretrial and trial admissions and planning activities, see People v. Sirhan, 7 Cal.3d 710, 720, 732, 102 Cal.Rptr. 385, 497 P.2d 1121 (Cal.1972). At most, Petitioner creates a sense of doubt about the number of gunshots fired in the kitchen on June 5, 1968, but contemporaneous eyewitness statements do not support a second shooter theory. (See Dkt. No. 180-1 at 5-36; see also Dkt. No. 153-2 at 29-41.) As the Report discusses, Petitioner himself undermined the second shooter theory at his 1985 parole hearing when he stated, “If anybody else was involved, wouldn’t I help myself after all these years, by telling authorities who else was in on it?” (Dkt. No. 216 at 1118 n. 28.) In light of the overwhelming evidence of guilt, Mr. Van Praag’s expert opinion is not sufficient to show actual innocence or to undermine the reliability of evidence so as to make a showing of actual innocence. See, e.g., Cooper v. Brown, 510 F.3d 870, 885 (9th Cir.2007) (rejecting actual innocence claim in light of overwhelming evidence of guilt). Accordingly, Petitioner’s objection is without merit." The Magistrate Judge properly considered the acoustics evidence.

D. Findings of Fact from the California Supreme Court

Petitioner disputes several of the findings of fact in the Report, arguing that there is insufficient documentation. These facts, however, were adopted from the California Supreme Court’s factual summary in Sirhan. (See Dkt. No. 216 at 1102 n. 11.) This factual summary is entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1):

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

Here, Petitioner fails to meet his burden.

First, Petitioner objects to statements regarding his activity with the Rosicrucian Order. The Report states that “[Petitioner] joined the [Rosicrucian] Order in 1965. He performed several experiments such as concentrating on a mirror and seeing the face of Robert Kennedy instead of his own.” (Dkt. No. 218 at 25; accord Dkt. No. 216 at 1105.) Petitioner argues that while he did look into the mirror following ritual instructions from the Order, this exercise was for the purpose of looking for his own aura. (Dkt. No. 218 at 25.) Second, Petitioner objects to the use of a conversation between Petitioner and Jesse Unruh. (Dkt. No. 218 at 25; see Dkt. No. 216 at 1103.) According to Petitioner, these statements lack a verifying source or documentary authority. Third, Petitioner takes issue with the Report’s statement that Petitioner was “in possession of newspaper clippings about Senator Kennedy when he was apprehended in the act of shooting him.” (Dkt. No. 218 at 28; accord Dkt. No. 216 at 1117.) Instead, Petitioner argues that he was in possession of a newspaper, which undoubtedly would contain an article about Senator Kennedy. Petitioner implies that he did not purposefully possess articles about the Senator. (Dkt. No. 218 at 28.)

Petitioner does not agree with the Cali-fornia Supreme Court’s characterization of evidence or its quality of documentation, but he fails to provide evidence, let alone clear and convincing evidence, to rebut the presumption of correctness. Therefore the Court OVERRULES these objections.

E. Ballistics Evidence

Petitioner objects to the Report’s treatment of the ballistics evidence; yet Petitioner does not provide evidence to support his theory of bullet substitution. Petitioner theorizes that the bullets introduced at trial as the Kennedy neck bullet and the Goldstein bullet were substitutes for the actual bullets. (Dkt. No. 218 at 28.) Petitioner argues that Officer De-Wayne Wolfer lied at trial and at subsequent hearings about matching the bullets to Petitioner’s gun, speculating that a substitution of bullets must have taken place. (Dkt. No. 218 at 31-32.) But Petitioner does not point to any substantive evidence, new or old, to support these allegations. Rather, to support his assertions, Petitioner argues:

1. The prosecution had its own analyst DeWayne Wolfer introduce the Kennedy neck bullet (Ex. 47);

2. Conflicted defense counsel stipulated his acceptance of the State’s ballistics evidence without conducting any examination of his own; and

3. The Medical Examiner, who actually removed the bullet during his autopsy, incredibly was not asked either by the prosecution or the defense to identify the bullet he removed and marked for identification.

(Dkt. No. 218 at 30-31.)

The issues raised by Petitioner have been rejected previously. In 1975, a court-appointed panel of experts extensively reviewed the ballistics evidence and heard testimony from witnesses, such as Officer Wolfer. (Dkt. No. 135 at 46.) The panel was unable to- confirm that three bullets were fired from Petitioner’s gun due to “barrel fouling” and a potential loss of fine detail in the intervening years; the commission did find, however, that the bullets were consistent with having been fired from the same gun. (Dkt. No. 181-1 at 60-61.) The panel concluded that “[t]here [wa]s no substantive or demonstrable evidence to indicate that more than one gun was used to fire any of the bullets examined.” (Dkt. No. 181-1 at 60.) Accordingly, the Court does not find merit in Petitioner’s objections pertaining to his substitution theory.

Petitioner makes another objection to the ballistics evidence, but the relevant portion of the Report was amended. Therefore, it is unnecessary to examine this objection further.

F. Hypnotic Programming

According to Petitioner, the Report blatantly distorts and ignores the opinions of qualified professionals Dr. Daniel Brown and Professor Alan Scheflin. (Dkt. No. 218 at 35.) The Court finds that Petitioner misunderstands the actual innocence standard and fails to provide sufficient evidence to pass through the Schlup gateway.

1. Actual Innocence Standard

Petitioner states the standard of review that must be applied to this evidence, that “[t]he standard is not to show who did the mind control; the standard is reasonable doubt.” (Dkt. No. 218 at 38.) The Court does not agree. In Schlup, the Court discussed the incidence of reasonable doubt and determined that it was not sufficient on its own to show actual innocence.

The meaning of actual innocence as formulated ... does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty. It is not the district court’s independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.

Schlup, 513 U.S. at 329, 115 S.Ct. 851. Petitioner may be referring to Lee, in which the Court held that a petitioner need not affirmatively prove innocence where the “post-conviction evidence casts doubt on the conviction by undercutting the reliability of the proof of guilt.” 653 F.3d at 938 (internal quotation marks omitted). In either case, Petitioner overstates the Report’s assessment of the evidence. The Report only concludes that Petitioner’s evidence “may be sufficient to suggest that [P]etitioner’s mind-control theory is not impossible.” This statement does not translate to a finding that it is more likely than'not that no juror, acting reasonably, could find Petitioner guilty beyond a reasonable doubt. As such, Petitioner’s objection to the applicable standard is without merit. The Report correctly cites and applies the actual innocence standard.

2. Hypno-Programming Evidence

Having reviewed Petitioner’s evidence of mind control and hypno-program-ming and considered it in conjunction with the other evidence submitted with the ha-beas petition, the Court agrees that Petitioner has failed to demonstrate actual innocence in accordance with Schlup.

Roughly forty years after the incident, Dr. Brown opines that a third party used a combination of. drugs, hypnosis, sensory deprivation, and suggestive influence to exert coercive persuasion over Petitioner, causing him to commit the acts at issue here. (Dkt. No. 207 at 37.) Petitioner points to a two-week period when he disappeared after falling off of a horse as an opportunity for him to be programmed. (Dkt. No. 218 at 37.) Additionally, as an avid user of the short-wave radio, Petitioner theorizes that he could have received messages and continued programming once he returned home. (Dkt. No. 207 at 42.)

Dr. Brown concludes that Petitioner’s susceptibility to hypnotism places him among the 4-5% of people who could be hypnotized to commit antisocial acts. (Dkt. No. 180-3 at 13.) According to Dr. Brown, Petitioner is also “highly socially compliant and has a high dissociative coping style. All three factors predict strong vulnerability to undue suggestive influence or coercive persuasion, hypnotic and non-hypnotic.” (Dkt. No. 180-3 at 13.) Dr. Brown states in his opinion that he used the term coercive persuasion “because high hypnotizability, in [his] opinion, is only one of a number of factors contributing to the overall coercive persuasion in the Petitioner’s case that led to his firing a weapon on the night of the assassination and subsequently led to his becoming amnesic for his actions.” (Dkt. No. 180-3 at 10.) Dr. Brown does not provide further details or evidence regarding the type of drugs or sensory deprivation used to exert coercive persuasion over Petitioner; instead, he argues that his diagnosis coupled with Petitioner’s recollections serve as sufficient evidence of hypnotic' programming and coercive persuasion to demonstrate actual innocence. (Dkt. No. 180-3 at 22.)

Next, Petitioner points to the opinions of Professor Scheflin and Dr. Edward Simson-Kallas to sustain his burden of proving actual innocence. Professor Scheflin did not examine Petitioner. Instead, his opinion is offered to rebut Respondent’s argument that hypno-program-ming is a “fantastic” theory. (Dkt. No. 180-2 at 7.) Professor Scheflin provides a background on hypnosis theories, concluding that research shows “it is possible, with a small select group of individuals, to influence the mind and behavior beyond legally and ethically permissible limits.” (Dkt. No. 180-2 at 30.) Professor Scheflin “personally knew several of the leading researchers who participated in [hypnosis] programs” conducted by government agencies. (Dkt. No. 180-2 at 2.) Professor Scheflin concludes that “[t]he idea of a hypnotically programmed agent may be ‘fantastic,’ as the Respondents claim, but it is not untrue.” (Dkt. No. 180-2 at 30.) While Professor Scheflin has an extensive background on the subject, he offers little direct application of his research to Petitioner’s case. The only part of Professor Scheflin’s opinion that pertains directly to Petitioner is derived from the opinions of Dr. Simson-Kallas, a psychologist who had the opportunity to spend considerable time with Petitioner. (Dkt. No. 180-2 at 28.)

Professor Scheflin reviews Dr. Simson-Kallas’s 1975 statement to the San Francisco Examiner that Petitioner was “a perfect choice for being a programmed hypnotic patsy.” (Dkt. No. 180-2 at 28.) Professor Scheflin also recounts Dr. Sim-son-Kallas’s critique of the theories presented on behalf of Petitioner at trial by defense expert Dr. Bernard Diamond. (Dkt. No. 180-2 at 29.) Dr. Simson-Kallas dismissed Dr. Diamond’s trial diagnosis that Petitioner was a paranoid schizophrenic who hypnotized himself into committing the acts. (Dkt. No. 180-2 at 29.) Rather, Dr. Simson-Kallas opined that Petitioner “was put up to draw attention while experts did the work. He would be easily blamed, being an Arab. He was programmed to be there.” (Dkt. No. 180-2 at 29.) Dr. Simson-Kallas reasoned that Petitioner “liked Kennedy, [and] that he held no animosity towards him.” (Dkt. No. 180-2 at 29.) Petitioner argues that Dr. Simson-Kallas’s opinions should not be dismissed because they were in fact formed “in a time frame that was ‘contemporaneous’ with the crime and found no medical evidence that' [P]etitioner was schizophrenic.” (Dkt. No. 218 at 39.)

Finally, Petitioner offers evidence of “two more recent, sensational studies.” (Dkt. No. 218 at 44.) The Court finds that Petitioner did not exercise due diligence in discovering and briefing these studies. Accordingly, the Court has exercised its discretion to disregard this untimely evidence. See Howell, 231 F.3d at 623 (holding that the district court did not abuse its discretion when it disregarded supplemental evidence because the petitioner did not present facts to the magistrate judge or adequately explain the deficiency).

The Court is not persuaded by Petitioner’s evidence. Petitioner focuses on invalidating Dr. Diamond’s opinion, rather than confronting other contemporaneous opinions and statements that undermine Dr. Simson-Kallas and Dr. Brown’s findings. For example, on cross-examination, Petitioner admitted to stating “I killed Robert Kennedy willfully, premeditatively, with twenty years of malice aforethought.” Sirhan, 7 Cal.3d at 720, 102 Cal.Rptr. 385, 497 P.2d 1121. This admission flatly contradicts Dr. Simson-Kallas’s finding that Petitioner liked Senator Kennedy. Further, Petitioner fails to contradict the trial testimony of Dr. Seymour Pollack, who testified on behalf of the prosecution. After spending roughly 200 hours on the case, Dr. Pollack agreed with Dr. Simson-Kallas and Dr. Brown; finding that Petitioner is not a paranoid schizophrenic. Yet Dr. Pollack did not agree with their other findings, testifying that he “found no evidence of any altered state of consciousness or dissociate state, and various matters indicated to the contrary.” Sirhan, 7 Cal.3d at 725, 102 Cal.Rptr. 385, 497 P.2d 1121. Finally, neither Dr. Brown nor Petitioner addresses evidence from defense investigator Michael McCowan suggesting that Petitioner was not in an amnesiac state. Petitioner’s evidence is far from conclusive on the issues of hypno-program-ming and coercive persuasion.

As discussed in Griffin v. Johnson, 350 F.3d 956, 965 (9th Cir.2003), psychiatrists and psychologists often disagree on patient assessments, particularly with diagnoses of mental illness. As a result, the court in Griffin concluded that evaluations from psychologists should be given little weight on habeas review because “ ‘a defendant could ... always provide a showing of actual innocence by hiring psychiatric experts who would reach a favorable conclusion.’ ” Id. (alteration in original) (internal quotation marks and citation omitted) (quoting Harris v. Vasquez, 949 F.2d 1497, 1515 (9th Cir.1990)). Petitioner’s “mere presentation of new psychological evaluations ... does not constitute a colorable showing of actual innocence.” Id. (alteration in original).

Petitioner attempts to distinguish Griffin from the facts of this case because “in Griffin, no psychological evidence was offered or relied upon by the defense team, whereas in the present case petitioner’s defense team centered their whole case on petitioner’s mental state and then at Trial, lead Counsel, Grant Cooper misrepresented, distorted, and omitted said evidence.” (Dkt. No. 218 at 40.) The Court does not find this distinction significant and accordingly finds the holding of Griffin to be binding precedent.

Under Schlup, the Court must “make its determination concerning the petitioner’s innocence in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.” Schlup, 513 U.S. at 328, 115 S.Ct. 851 (internal quotation marks omitted). As such, the Court has assessed Petitioner’s claim of actual innocence in light of all of the evidence, as was done in Griffin. Viewed in a light most favorably to him, Petitioner shows that mind control may not be impossible, and that he possesses personality traits suggesting that he would be an able candidate for such mind control. This does not meet the showing required by Schlup to pass through the actual-innocence gateway.

In light of this and the other evidence, Petitioner does not establish “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup, 513 U.S. at 327, 115 S.Ct. 851. As such, Petitioner is misled when he argues that he has met his evidentiary burden. His objections are without merit.

V. REQUEST FOR EVIDENTIARY HEARING

Petitioner requests an evidentiary hearing to assess the new eyewitness, acoustics, ballistics, and hypno-program-ming evidence. Pursuant to 28 U.S.C. § 2254(e)(2), federal courts may only hold evidentiary hearings on habeas claims under certain prescribed conditions:

If the applicant has failed to develop the factual basis of a claim in state court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant can show that—

(A) the claim relies on—

(i) a new rule of constitutional law ...; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to éstablish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.

Id. (emphasis added); accord Griffin, 350 F.3d at 965-66 (quoting 28 U.S.C. § 2254(e)(2)) (finding that the circumstances did not warrant an evidentiary hearing because Petitioner did not show that no reasonable factfinder would have found the applicant guilty of the underlying offense).

The acoustics evidence and new eyewitness statements do not meet the threshold for an evidentiary hearing. Even assuming that Petitioner exercised due diligence as discussed in Section II.C, Mr. Van Praag’s expert opinion does not exonerate Petitioner. It raises doubts as to the number of bullets fired, but it does nothing to diminish the overwhelming evidence of guilt. Similarly, as discussed in Section II.B, while Ms. Rhodes-Hughes’s recent declaration suggests the presence of a second shooter, it also unequivocally confirms Petitioner’s role as a shooter in the kitchen pantry. It is contradicted by the other eyewitness testimony. Petitioner does not prove by clear and convincing evidence that, but for ineffective assistance of counsel, no reasonable factfinder would have found Petitioner guilty of the underlying offense.

Additionally, the conditions required for an evidentiary hearing are not met for the ballistics evidence. This evidence has already been considered by courts, as well as by a commission of experts. The commission was precluded from making a conclusive determination in 1975 because of “barrel fouling,” “impact damage and distortion,” and a “possible loss of fine detail over the intervening years.” (Dkt. No. 181-1 at 60-61.) Petitioner does not indicate how a renewed study of the evidence ■will overcome these same challenges. Further, in 1975, the commission did not make a recommendation for additional testing of the physical evidence. (Dkt. No. 181-1 at 62.) Petitioner thus “has not established that an evidentiary hearing would produce evidence more reliable or more probative” than the evidence currently before the Court. Griffin, 350 F.3d at 966.

Finally, the expert opinions of Dr. Brown and Professor Scheflin are insufficient to support Petitioner’s request for an evidentiary hearing on the topic of hypno-programming. Though Petitioner raises doubts as to the assessment conducted by Dr. Diamond, there is a conflicting opinion from Dr. Pollack and inculpatory evidence from Mr. McCowan. Petitioner fails to provide clear and convincing evidence that, but for ineffective assistance of counsel, no reasonable factfinder would have found Petitioner guilty of the underlying offense.

Here, Petitioner “has failed to show what ... an evidentiary hearing might reveal of material import on his assertion of actual innocence.” Id. (alteration in origi-. nal) (internal quotation marks and citation omitted). Accordingly, the Court declines Petitioner’s request for an . evidentiary hearing.

VI. CONCLUSION

IT IS ORDERED that: (1) the August 26, 2013 Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as to the findings of fact and conclusions of law herein; (3) Petitioner’s request for an evidentiary hearing is DENIED; and (4) Judgment shall be entered DENYING the petition for writ of habeas corpus and DISMISSING the action with prejudice.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge’s Report and Recommendation and Judgment by the United States mail on the parties.

IT IS SO ORDERED.

SIRHAN BISHARA SIRHAN, Petitioner, v. P.D. BRAZELTON, Warden, Respondent.

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

ANDREW J. WISTRICH, United States Magistrate Judge.

This case may be the final chapter in an American tragedy. On June 5, 1968, moments after declaring victory in the California Democratic primary, Senator Robert F. Kennedy walked through the kitchen pantry of the Ambassador Hotel, where petitioner was waiting. As Senator Kennedy stopped to shake hands with hotel employees, petitioner walked toward him, extending his arm. Instead of shaking Senator Kennedy’s hand, petitioner shot him. Petitioner continued to fire his gun even as bystanders wrestled him onto a table. Senator Kennedy died of his wounds.

Petitioner was charged with assassinating Senator Kennedy. The evidence of petitioner’s guilt was overwhelming. Not only did numerous witnesses see petitioner shoot Senator Kennedy, but petitioner— who had written “RFK Must Die” and “Robert F. Kennedy must be assassinated” repeatedly in his diary — confessed to shooting Senator Kennedy “with malice aforethought.” Petitioner was convicted of first degree murder and five counts of assault with a deadly weapon. He received a death sentence.

In this petition for a writ of habeas corpus, petitioner challenges his conviction for the assassination of Senator Kennedy. This petition was filed in 2000 — more than three decades after petitioner was convicted. Not surprisingly, respondent moved to dismiss the petition on the ground that it is barred by the statute of limitation. Petitioner opposes the motion, arguing, among other things, that he is -entitled to an exception to the statute of limitation because he is actually innocent. For the following reasons, respondent’s motion should be granted, and the petition should be dismissed as untimely.

Procedural Background

The California Supreme Court affirmed petitioner’s conviction, but reduced his sentence to life imprisonment. People v. Sirhan, 7 Cal.3d 710, 717, 755, 102 Cal.Rptr. 385, 497 P.2d 1121 (1972). The United States Supreme Court denied petitioner’s petition for a writ of certiorari on February 20, 1973. Sirhan v. California, 410 U.S. 947, 93 S.Ct. 1382, 35 L.Ed.2d 613 (1973).

Petitioner filed his first habeas petition in the California Supreme Court in 1975, claiming, among other things, that the prosecution had suppressed evidence suggesting that an unknown second gunman fired the bullet that killed Senator Kennedy. The petition was denied on February 13, 1975. [Lodged Documents (“LD”) 13-15],

Later the same year, the Los Angeles Superior Court conducted “special proceedings,” pursuant to which a panel of seven independent firearms experts re-examined the ballistics evidence presented at trial. [LD 6 (Exhibits to Petition in Case No. S062258), Exhibit (“Ex.”) A (February 5, 1976 Minute Order) & Ex. G (Superior Court’s Order for Resting of Exhibits); LD 27 (Partial Reporter’s Transcript of Proceedings) ]. The examiners reviewed the evidence, conducted tests, and unanimously concluded that there was no indication that the bullets were fired from different guns. The examiners, however, were unable to definitively confirm that the bullets (including the bullet removed from Senator Kennedy’s neck) were fired from petitioner’s gun. The inability to confirm that petitioner’s gun fired the bullets was the result of the physical condition of the gun (which, in turn, was the partly the result of the passage of time), which prevented reproducibility. [LD 6, Ex. B (Comprehensive Joint Report of the Firearms Examiners) ].

On April 21, 1997, petitioner filed a ha-beas petition in the Los Angeles County Superior Court. On April 30, 1997, the Superior Court denied the petition on the merits, noting that petitioner had offered to plead guilty to first degree murder in exchange for a sentence of life in prison, and that at trial, petitioner had admitted shooting Senator Kennedy. [LD 9].

On May 1, 1997, petitioner filed a habeas petition in the California Court of Appeal. [LD 2], The petition was denied on June 17, 1997. The appellate court found that the petition was untimely, that petitioner was estopped from claiming that someone else killed Senator Kennedy after testifying at trial that he did, that there was no violation of petitioner’s constitutional rights, and that there was no basis for doubting the correctness of the verdict. [LD 3].

Petitioner filed a habeas petition in the California Supreme Court on June 20, 1997. [LD 4], Respondent was ordered to file an informal response to the petition, and was granted five extensions of time within which to do so. The petition was denied on May 24, 2000, both as untimely and on the merits. [LD 7],

This petition was filed the next day.

Discussion

Section 2244(d)" imposes a one-year deadline on the filing of a habeas corpus petition by a state prisoner. 28 U.S.C. § 2244(d). Where, as here, a conviction became final before the enactment of the AEDPA, a petitioner has until April 24, 1997 within which to file a federal petition. See Patterson v. Stewart, 251 F.3d 1243, 1245-1246 (9th Cir.), cert. denied, 534 U.S. 978, 122 S.Ct. 406, 151 L.Ed.2d 308 (2001); Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999); Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1287 (9th Cir.1997), cert. denied, 522 U.S. 1099, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998) & 523 U.S. 1061, 118 S.Ct. 1389, 140 L.Ed.2d 648 (1998), overruled on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir.1998) (en banc), cert. denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999).

This petition, however, was not filed until May 25, 2000, more than three years after the limitation period expired. Absent grounds for statutory or equitable tolling, delayed accrual, or some other exception to the statute of limitation, this petition is time-barred.

A. Statutory tolling

The limitation period does not run while a properly filed state application for post-conviction relief is pending. 28 U.S.C. § 2244(d)(2); see Carey v. Saffold, 536 U.S. 214, 218, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002).

Petitioner filed a petition in the Los Angeles County Superior Court on April 21, 1997, with four days of the limitation period remaining. That petition was denied on April 30, 1997. Thus, petitioner had until May 5, 1997 to file his federal petition.

As set forth above, petitioner also filed habeas petitions in the California Court of Appeal and the California Supreme Court. Both of those petitions, however, were denied in part as untimely. [LD 3 at 2-5 & LD 7].

When the California courts deny a petition as untimely, the petition is not “properly filed” for purposes of statutory tolling. Allen v. Siebert, 552 U.S. 3, 6-7, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007); Carey, 536 U.S. at 236, 122 S.Ct. 2134; Lakey v. Hickman, 633 F.3d 782, 785-786 (9th Cir.), cert. denied,—U.S.-, 131 S.Ct. 3039, 180 L.Ed.2d 858 (2011). This is true even when the state court’s denial is based both on the merits and on the ground of untimeliness. Bonner v. Carey, 425 F.3d 1145, 1148-1149 (9th Cir.2005), cert. denied, 549 U.S. 856, 127 S.Ct. 132, 166 L.Ed.2d 97 (2006). Accordingly, the limitation period was not statutorily tolled during the pendency of the petitions filed in the California Court of Appeal or California Supreme Court.

Petitioner argues that the timeliness requirements are not, or were not at, the time the state court imposed them, adequate and independent state procedural rules, and as a result, they are insufficient to prevent statutory tolling. [DN 135 (Opposition to Motion to Dismiss) at 6-20]. The principles of procedural default upon which petitioner relies, however, do not apply to statutory tolling. See Zepeda v. Walker, 581 F.3d 1013, 1018 (9th Cir.2009) (rejecting the argument that statutory tolling is available where a state procedural rule is not firmly established and regularly followed); Ellis v. Harrison, 2010 WL 3385206, at *18 (C.D.Cal. July 12, 2010) (stating that the petitioner’s argument that California’s timeliness rule was not applied consistently “appears to confuse procedural default concepts with the analysis required for purposes of the statute of limitations defense”), report and recommendation adopted, 2010 WL 3385201 (C.D.Cal. Aug. 25, 2010); Barr v. Yates, 2009 WL 1468721, at *2 (N.D.Cal. May 26, 2009) (explaining that an argument that a state timeliness rule had been applied inconsistently is “irrelevant” to the statute of limitation issue).

As a result, unless petitioner is entitled to equitable tolling or delayed accrual under 28 U.S.C. § 2244(d)(1)(D), the limitation period expired on May 5,1997.

B. Equitable tolling

The limitation period also can be equitably tolled. Petitioner is entitled to equitable tolling only if he shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). “In this circuit, equitable tolling of the filing deadline for a habeas petition is available ‘only if extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.’ ” Lott v. Mueller, 304 F.3d 918, 922 (9th Cir.2002) (quoting Miles, 187 F.3d at 1107). Equitable tolling may be appropriate when “external forces, rather than a petitioner’s lack of diligence, account for the failure to file a timely claim.” Lott, 304 F.3d at 922 (quoting Miles, 187 F.3d at 1107).

Petitioner alleges that he is entitled to equitable tolling because he was diligently pursuing his claims through the state courts. [DN 153 (Petitioner’s Supplemental Brief on Equitable Tolling) at 4]. Although petitioner may have been diligent, at least in filing and prosecuting his state habeas petitions, diligence alone is not enough to warrant equitable tolling. Petitioner also must show that an éxtraor-dinary circumstance prevented him from filing his federal petition within the statutory deadline.

While unfortunate, petitioner’s predicament is not a result of circumstances beyond his control. No external force was the proximate cause of petitioner’s untimely filing of this petition. Instead, petitioner’s plight is a result of his (and his counsel’s) choice to wait for the outcome of each of his three state habeas petitions before filing a petition in this Court, rather than to file a federal petition and seek a stay so that he could exhaust his state remedies as to any unexhausted claims. See Pace, 544 U.S. at 416, 125 S.Ct. 1807 (addressing the predicament of a petitioner who litigates in state court, only to discover that his state petition was not “properly filed” and thus that his federal petition is untimely, and explaining that a petitioner can avoid this predicament by filing a “protective” petition in federal court and asking that court to stay the proceedings until state remedies are exhausted); Rhines v. Weber, 544 U.S. 269, 273-275, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) (holding' that federal courts may stay mixed petitions while a petitioner exhausts his state remedies). Petitioner took the risk that the statute would be interpreted (as it subsequently has been) as excluding statutory tolling for state, petitions denied as untimely.

Although petitioner’s counsel made an unsound tactical decision — namely, to pursue additional collateral proceedings in state court in 1997 before filing a federal petition — this simple tactical error did not amount to the type of egregious or extraordinary misconduct sufficient to warrant equitable tolling. See Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2564, 177 L.Ed.2d 130. (2010) (stating that “garden variety” claims of attorney negligence such as miscalculating the limitation period or being unaware that the period had expired do not warrant equitable tolling, but that extraordinary misconduct — such as ignoring the petitioner’s repeated letters and failing to communicate for years despite pleas from the petitioner — might warrant equitable tolling); See Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir.) (finding that equitable tolling was not warranted where the petitioner’s counsel failed to perfect a timely appeal, failed to inform the petitioner of the deadline for filing a state habeas petition, and failed to provide the petitioner with his case files in a timely manner because attorney negligence did not amount to “extraordinary circumstances” and did not prevent the petitioner from timely filing a federal petition), cert. denied, 562 U.S. 969, 131 S.Ct. 474, 178 L.Ed.2d 301 (2010); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.) (“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 ... merely oversight, miscalculation or negligence on the petitioner’s part ....”) (internal quotation marks and brackets omitted), cert. denied, 558 U.S. 897, 130 S.Ct. 244, 175 L.Ed.2d 167 (2009); Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001) (holding that equitable tolling was not warranted where the petitioner’s retained attorney negligently failed to file a habeas petition within the limitation period), cert. denied, 535 U.S. 1055, 122 S.Ct. 1913, 152 L.Ed.2d 823 (2002); but see Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir.2003) (holding that equitable tolling was warranted where the petitioner’s attorney failed to prepare and file a petition even though he was hired a year in advance of the deadline and the petitioner and his mother contacted the attorney “numerous times, by telephone and in writing, seeking action, but these efforts proved fruitless. Furthermore, despite a request that he return [the petitioner’s] file, [the attorney] retained.it for the duration of the limitations period and more than two months beyond.”).

C. “Delayed accrual” pursuant to 28 U.S.C. § 2244(d)(1)(D)

Petitioner’s allegations regarding the belated discovery of exculpatory evidence raise the possibility that the limitation period did not begin to run until the date on which petitioner knew or should have known the factual basis for his claims. See 28 U.S.C. § 2244(d)(1)(D) (explaining that the limitation period does not begin until the “thé date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence”). As the Ninth Circuit has explained, under section 2244(d)(1)(D), the limitation period does not begin until the petitioner knows, or through diligence could discover, the important facts underlying his claim, not when petitioner recognizes the legal significance of those facts. Hasan v. Galaza, 254 F.3d 1150, 1154 & n. 3 (9th Cir.2001) (citing Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.2000) (“Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance.”)); see generally Mardesich v. Cate, 668 F.3d 1164, 1170-1171 (9th Cir.2012) (stating that section 2244(d)(1). requires consideration of the appropriate triggering date for each claim). Furthermore, petitioner must demonstrate the he acted diligently in pursuing discovery of the relevant facts. See Johnson v. United States, 544 U.S. 295, 310, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005) (holding that a petitioner challenging a federal sentence that was enhanced by a prior conviction that was subsequently vacated was not entitled to delayed accrual because he had failed to exercise due diligence in seeking to overturn the prior conviction).

1. The Pruszynski recording

A reporter named Stanislaw Pruszynski, who was at the Ambassador Hotel on the night Senator Kennedy was shot, inadvertently left his tape recorder on and recorded the shooting. Petitioner alleges that Pruszynski’s recording is a “key piece” of evidence that “demonstrates that thirteen shots were fired on the night Senator Kennedy was killed.” [DN 153 at 4-5]. According to petitioner, the recording was suppressed by government authorities, was not discovered by petitioner until 2001, and was not analyzed by petitioner until 2005 because the technology required to perform the analysis was not available until then. [DN 153 at 5-6].

Contrary to petitioner’s contention, this audio recording was available and could have been discovered in 1988, when nearly all law enforcement records regarding Senator Kennedy’s assassination were released to the public as part of the California State Archives. [See www.sos.ca.gov/ archives (Appendix E, Index and Summary of Audio Tapes listing Pruszynski recording as. CSA-K123); Petition at 200 (declaration of petitioner’s investigator, Rose Lynn Mangan, stating that petitioner’s counsel told her in 1993 that the police evidence in petitioner’s case had been released to the public in 1988) ].

Furthermore, even assuming the truth of petitioner’s allegation that he could not have discovered the recording by diligent effort until 2001, petitioner did not need the recording to prepare and file his state or federal petitions. To the contrary, petitioner filed this petition in 2000, a year before he says he discovered the Pruszyn-ski recording, and five years before the recording allegedly was analyzed with the newly available technology supposedly required to properly evaluate it. Because petitioner was able to file this petition without the Pruszynski recording, it could not have been a necessary factual predicate to any claim contained in either his state or federal petitions. See Jurado v. Burt, 337 F.3d 638, 644 (6th Cir.2003) (“AEDPA does not convey a right to an extended delay while a habeas petitioner gathers every possible scrap of evidence that might support his claim.”); Powelson v. Sullivan, 2006 WL 2263908, at *3-4 (N.D.Cal. Aug. 8, 2006) (concluding that where the petitioner was present at his 1998 sentencing hearing he was not entitled to delayed accrual of a claim challenging his sentence, even though the petitioner allegedly did not obtain physical evidence supporting his claim until 2005).

2. The factual predicate for petitioner’s Brady and ineffective assistance of counsel claims

Petitioner alleges that the prosecution suppressed evidence of a bullet fragment removed from Senator Kennedy’s head during the autopsy and preoperative police photographs of external wounds; substituted a “fake” bullet for one of the actual bullets; conspired with the Los Angeles Police Department (“LAPD”) to alter the forensic evidence; suppressed evidence that the gun matched to the bullets at trial was not his, based upon a discrepancy between the serial number listed on the evidence envelope and the serial number on petitioner’s gun; delayed disclosure of the autopsy report; and suppressed evidence of two bullet holes in a door frame at the murder scene, which petitioner alleges to be proof of a second gunman because all eight bullets from petitioner’s gun were otherwise accounted for. [Petition at 9-25, 25-49, 49-56, 56-104, 107-132],

Delayed accrual is not appropriate on these claims because all of the evidence petitioner relies upon was know