REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Stephen V. Wilson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on November 19, 2014.1 Petitioner argues that: (1) an "implied acquittal" invalidates Petitioner's sentence on the attempted murder count ("Ground One"); (2) Petitioner's counsel allegedly ineffectively failed to file a timely notice of appeal ("Ground Two"); and (3) the trial court allegedly denied Petitioner "his right to appeal an appealable order" ("Ground Three"). Respondent filed a "Motion to Dismiss Petition, etc." ("Motion to Dismiss") on February 12, 2015, asserting that the Petition is both "second or successive" and untimely. Petitioner filed an "Opposition to Respondent's Motion to Dismiss" ("Opposition") on March 9, 2015.

BACKGROUND

Petitioner's prior proceedings in state and federal court have been numerous and complex. In 1998, the State charged Petitioner with wilful, deliberate and premeditated attempted murder (Count 1) and assault with a deadly weapon and by means of force likely to produce great bodily injury (Count 2) (see Petition, Ex. A, first and second pages). During deliberations, the foreperson indicated the jury's initial failure to agree on a verdict on Count 1 (Respondent's Lodgment 23, Ex. B, internal p. 458).2 The court told the jurors that, if they could not reach a unanimous verdict on Count 1, they should attempt to reach a verdict on Count 2 (id.).

Later, the foreperson announced that the jury had reached a verdict on Count 2 (id., p. 463). The clerk read the verdict (guilty) on Count 2 (id. pp. 463-64; see Petition, Ex. A, fourth page). The court polled the jurors, asking the jurors if they thought there was a reasonable probability of reaching a verdict on Count 1 if they continued deliberating (id., p. 465-66; see also Petitioner's "Application for Leave to File Second or Successive Petition, etc.," filed September 23, 2009, in the United States Court of Appeals for the Ninth Circuit, case number 09-73030, Ex. A, internal p. 465-66).3 After several jurors expressed the belief that additional deliberations might be helpful, the court asked the jury to continue deliberations (Petitioner's "Application for Leave to File Second or Successive Petition, etc.," filed September 23, 2009, in the United States Court of Appeals for the Ninth Circuit, case number 09-73030, Ex. A, internal p. 467-69). Still later, the judge again polled the jury, and several jurors again indicated that additional deliberations might be helpful in arriving at a verdict (id., pp. 478-80).

Subsequently, the court replaced one of the jurors with an alternate and instructed the jury to "set aside and disregard all past deliberations and begin deliberating anew" (id., pp. 571-72). However, the court later instructed the jury that it did not have to deliberate again on Count 2 because the court previously had accepted a verdict on that count (id., pp. 580-81; see Petition, Ex. A, sixth page). Thereafter, the jury reached a verdict of guilty on Count 1 (Petition, Ex. A, seventh page). Thus, the jury found Petitioner guilty of attempted wilful, deliberate and premeditated murder (Count 1) and assault with a deadly weapon (Count 2), and also found true the allegations that Petitioner personally used a deadly weapon and inflicted great bodily injury in the commission of the attempted murder and inflicted great bodily injury in the commission of the assault (see Petition, p. 2; Respondent's Lodgment 1, p. 2; see People v. Boddie, 2002 WL 287936, at *1 (Cal. App. Feb. 27, 2002).

The court imposed a sentence of life with the possibility of parole plus ten years on Count 1 and a sentence of fifteen years on Count 2, but stayed sentence on Count 2 (see Petitioner's "Application for Leave to File Second or Successive Petition, etc.," Ex. A, internal pages 620-22; Petition, Ex. A, ninth page). The California Court of Appeal affirmed the judgment (see Respondent's Lodgment 1, p. 2; People v. Boddie, 2002 WL 287936, at *1 (Cal. App. Feb. 27, 2002).

Petitioner filed a petition for review. On October 17, 2001, the California Supreme Court transferred the case back to the Court of Appeal with directions to vacate that court's decision and to reconsider the matter in light of People v. Cleveland, 25 Cal.4th 466, 106 Cal.Rptr.2d 313, 21 P.3d 1225 (2001), and People v. Jefferson, 21 Cal.4th 86, 86 Cal.Rptr.2d 893, 980 P.2d 441 (1999) (see Respondent's Lodgment 1, p. 2; People v. Boddie, 2002 WL 287936, at *1 (Cal. App. Feb. 27, 2002).

On February 27, 2002, the Court of Appeal ruled that the trial court had erred in failing to double the minimum term of Petitioner's indeterminate life term for attempted first degree murder (Count 1) to fourteen years, but otherwise affirmed the judgment (see Respondent's Lodgment 1, p. 23; People v. Boddie, 2002 WL 287936, at *22-23 (Cal. App. Feb. 27, 2002). The California Supreme Court denied Petitioner's petition for review on June 12, 2002 (Respondent's Lodgment 2).

On August 7, 2002, the Superior Court amended the judgment nunc pro tunc to impose two consecutive terms of life with the possibility of parole plus ten years (Petition, Ex. C; Respondent's Lodgments 3, 4, 5). This amended sentence did not conform to the sentence the February 27, 2002 Court of Appeal opinion had directed the Superior Court to impose.

On December 10, 2002, Petitioner filed a habeas corpus petition in this Court in Boddie v. Runnels, case number CV-02-9340-SVW(E) (Respondent's Lodgment 6).4 On June 6, 2003, the Magistrate Judge issued a Report and Recommendation, recommending denial and dismissal of the petition on the merits and with prejudice (Respondent's Lodgment 7). On August 1, 2003, the District Judge issued an "Order Adopting Findings, Conclusions and Recommendations of United States Magistrate Judge" (Respondent's Lodgment 8). Judgment was entered on August 4, 2003. The United States Court of Appeals for the Ninth Circuit denied a certificate of appealability on February 3, 2004 (Respondent's Lodgment 10).

On January 26, 2004, Petitioner filed a habeas corpus petition in the California Supreme Court, in case number S122162.5 The California Supreme Court denied this petition on November 17, 2004.

On May 4, 2005, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court (Respondent's Lodgment 12). On that date, the Superior Court denied the petition for untimeliness and for failure to state a prima facie claim for relief (Respondent's Lodgment 13).

On June 23, 2005, Petitioner filed a habeas corpus petition in the Court of Appeal, in case number B183863, challenging the Superior Court's August 7, 2002 amendment of Petitioner's sentence (Respondent's Lodgment 14). The State did not oppose the petition (see Petition, Ex. C, 5-11; Respondent's Lodgment 15).

On September 19, 2005, Petitioner filed a habeas corpus petition in the Court of Appeal, in case number B185860, which that court denied on September 29, 2005, without prejudice on the ground that Petitioner had not shown he had sought relief in the Superior Court.

Meanwhile, in case number B183863, the Court of Appeal issued an order granting Petitioner's June 23, 2005 petition and remanding the case with directions "to vacate the August 7, 2002 sentence in Los Angeles Superior Court Case No. KA037637, entitled People v. Alexander Boddie, and enter a new and different order, imposing the sentence on count 1 of 14 years to life" (Respondent's Lodgment 15). On November 2, 2005, the Superior Court issued a minute order stating: "The court modifies the judgment . . . to provide that the defendant's indeterminate term on count 1 is 14 years to life pursuant to Penal Code sections 667(e)(1) [and] 1170.12(c)(1) and pursuant to the Court of Appeal order. . . ." (Respondent's Lodgment 16). After making a credit calculation, the court stated: "The court does not modify the sentence in any other respect" (id.). An amended abstract of judgment reflecting the sentence modification was filed on November 3, 2005 (Respondent's Lodgment 17).

Thereafter, Petitioner filed four habeas corpus petitions in the Court of Appeal: (1) on December 28, 2005, Petitioner filed a habeas petition in the Court of Appeal in case number B188068, which the court denied on January 12, 2006; (2) on May 31, 2006, Petitioner filed a habeas petition in the Court of Appeal in case number B191352, which the court denied on June 15, 2006; (3) over eighteen months later, on February 6, 2008, Petitioner filed a habeas petition in the Court of Appeal in case number B205460, which the court denied on May 16, 2008; and (4) on October 17, 2008, Petitioner filed a habeas petition in the Court of Appeal in case number B211423, which the court denied on November 13, 2008.6

On January 12, 2009, Petitioner filed a habeas petition in the California Supreme Court, in case number S169667. On June 24, 2009, the California Supreme Court denied that petition with citations to In re Robbins, 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998), and In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993),7 signifying that the court deemed the petition to be untimely.8

On September 23, 2009, Petitioner filed an "Application for Leave to File Second or Successive Petition Under 28 U.S.C. § 2254, etc." in the United States Court of Appeals for the Ninth Circuit, in Ninth Circuit case number 09-73030. On December 11, 2009, the Ninth Circuit denied the Application on the ground that Petitioner had not "made a prima facie showing under 28 U.S.C. § 2244(b)(2). . . ." It is unclear whether the Ninth Circuit was aware of the November 2, 2005 amended judgment at the time the Ninth Circuit denied the Application.9

On September 21, 2010, Petitioner filed a petition for coram nobis in the California Court of Appeal, in case number B227466, which that court denied on October 22, 2010, "without prejudice to petitioner's first filing for writ of habeas corpus in LASC." On November 10, 2010, Petitioner filed a habeas petition in the Los Angeles County Superior Court, asserting, inter alia, that Petitioner's attempted murder conviction was "void" because the jury effected an "implyed [sic] acquittal by law" on that count (Respondent's Lodgment 20). On November 15, 2010, the Superior Court denied the Petition in a written order, ruling that the petition was "obviously and woefully untimely," that Petitioner had raised this issue in "only slightly different form" in his "10/27/03 petition,"10 and that the trial court did not err in accepting guilty verdicts on both counts (Respondent's Lodgment 21).

Petitioner then filed two more habeas petitions in the California Court of Appeal: (1) a petition filed December 21, 2010, in case number B229597, which the court denied on January 5, 2011; and (2) a petition filed August 15, 2011, in case number B235170, which the court denied on August 25, 2011.11 Petitioner filed a petition for review in the California Supreme Court, in case number S196350, seeking review of the decision in Court of Appeal case number B235170. The California Supreme Court denied this petition for review on November 2, 2011.12

On March 26, 2012, Petitioner filed a habeas petition in the California Court of Appeal, in case number B239972, which the Court of Appeal denied on April 27, 2012.13 Petitioner filed another habeas petition in the Court of Appeal on August 17, 2012, in case number B243305, which the Court of Appeal denied on September 13, 2012.14 On April 2, 2013, Petitioner filed a habeas petition in the California Supreme Court, in case number S209718.15 The California Supreme Court denied the petition on June 12, 2013, with citations to In re Robbins, supra and In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513 (1953).16

On October 30, 2013, Petitioner filed another habeas petition in the California Court of Appeal, in case number B252190, which that court denied without prejudice on November 25, 2013.

On March 6, 2014, the Superior Court received from Petitioner a "Motion to Vacate Illegal Judgment and Sentence, etc." (Respondent's Lodgment 23).17 Petitioner again challenged his sentence for attempted murder on the ground that the jury supposedly had impliedly acquitted Petitioner on that count. The Superior Court denied the petition on March 14, 2014, on the ground that the "issue has been litigated [and] the sentence is legal" (Respondent's Lodgment 24).

On April 4, 2014, the Superior Court received from Petitioner a putative notice of appeal, purporting to appeal from the "Illegal Resentencing on November 2, 2005" (Respondent's Lodgment 25). Petitioner alleged that his sentence on Count 1 was unlawful because "[t]he Trial Court received guilty verdict on the lesser and polled the Jury with no verdict on Count (1)" (id.). On April 9, 2014, the Superior Court rejected the putative notice of appeal for filing, stating "[t]he sentence has been litigated and judgment affirmed by the Court of Appeals [sic]" (Respondent's Lodgment 26). On May 7, 2014, Petitioner filed with the California Court of Appeal a "Motion to File a Constructive Notice of Appeal, etc.," alleging that the Superior Court had violated Petitioner's constitutional rights by refusing to accept the putative notice of appeal (Respondent's Lodgment 27). On May 21, 2014, the Court of Appeal issued an order in case number B256105 construing the "Motion to File a Constructive Notice of Appeal, etc." as a petition for writ of mandate and denying the petition (Respondent's Lodgment 28).

On August 4, 2014, Petitioner filed a habeas petition in the California Supreme Court, in case number S220374, containing the three claims raised in the present federal Petition (Respondent's Lodgment 29). The California Supreme Court denied the petition summarily on October 15, 2014 (Respondent's Lodgment 30).

DISCUSSION

I. The Petition Is Not Second or Successive.

A petitioner seeking to file a "second or successive" habeas petition in a United States District Court first must obtain authorization from a United States Court of Appeals. 28 U.S.C. § 2254(b); see Burton v. Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive authorization from Court of Appeals before filing second or successive petition, "the District Court was without jurisdiction to entertain [the petition]"); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000) ("the prior-appellate-review mechanism set forth in § 2244(b) requires the permission of the court of appeals before `a second or successive habeas application under § 2254' may be commenced"). Respondent contends the Petition is "second or successive" to the petition in Boddie v. Runnels, CV 02-9340-SVW(E). Petitioner contends that, under Magwood v. Patterson, 561 U.S. 320 (2010) ("Magwood"), the Petition is not "second or successive" because the Superior Court amended the judgment in Petitioner's criminal case subsequent to the entry of judgment in Boddie v. Runnels.

In Magwood, the United States Supreme Court held that a numerically second federal habeas petition challenging a new judgment imposed after resentencing was not "second or successive" within the meaning of section 2244(b), where the first federal petition had been filed prior to resentencing and had challenged the original judgment. Magwood, 561 U.S. at 333-42. In Wentzell v. Neven, 674 F.3d 1124, 1127-28 (9th Cir. 2012), cert. denied, 133 S.Ct. 2336 (2013), the Ninth Circuit held that the latter of two federal petitions is not "second or successive" if there had been a "new judgment intervening between the two habeas petitions," even if the second petition contains claims which could have been raised in the first petition. Wentzell v. Neven, 674 F.3d at 1126-27. This holding resolved an issue left open in Magwood. See Magwood, 561 U.S. at 342.

As indicated above, pursuant to the September 29, 2005 order of the California Court of Appeal, the Superior Court issued an order on November 2, 2005, stating that the court "modified the judgment . . . to provide that the defendant's indeterminate term on count 1 is 14 years to life pursuant to Penal Code sections 667(e)(1) [and] 1170.12(c)(1) and pursuant to the Court of Appeal order. . . ." The Superior Court's November 2, 2005 order postdated the August 4, 2003 entry of judgment in Boddie v. Runnels (Petitioner's first federal habeas proceeding).

Respondent contends the Superior Court's November 2, 2005 order did not constitute an "intervening judgment" within the meaning of Magwood because the Superior Court assertedly "did not impose any sentence," but "simply corrected a clerical error to amend Petitioner's abstract of judgment to reflect the proper sentence on Count 1 as ordered by the Court of Appeal" (Motion to Dismiss, p. 9). Although there is no United States Supreme Court authority on point, the Ninth Circuit and other lower federal courts have held that an amendment to a judgment merely to correct a "clerical" error does not constitute an "intervening judgment" within the meaning of Magwood. See, e.g., Johnson v. Duffy, 591 Fed. App'x 629, 629-30 (9th Cir. 2015) (petition second or successive where amendment to abstract of judgment was a clerical change which did not revise petitioner's sentence, petitioner was never resentenced and trial court never amended the original judgment); Gonzalez v. Diaz, 2014 WL 5493874, at *6-8 (C.D. Cal. June 11, 2014), adopted, 2014 WL 5513048 (C.D. Cal. Oct. 29, 2014) (order correcting mathematical calculation of custody credits did not qualify as "intervening judgment" within the meaning of Magwood); Tate v. Trimble, 2013 WL 3816991, at *6-7 (C.D. Cal. July 18, 2013) (Magwood inapplicable where sentencing court's nunc pro tunc minute order merely corrected errors made in recording the judgment in earlier order).

"[A] court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts." In re Candelario, 3 Cal.3d 702, 705, 91 Cal.Rptr. 497, 477 P.2d 729 (1970) (citation omitted). "Clerical error, however, is to be distinguished from judicial error which cannot be corrected by amendment." Id. "The distinction between clerical error and judicial error is `whether the error was made in rendering the judgment, or in recording the judgment entered.'" Id. (citation and internal quotations omitted). "An amendment that substantially modifies the original judgment or materially alters the rights of the parties may not be made by the court under its authority to correct clerical error . . . unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion." Id. (citations omitted) (emphasis added).

Here, the sentencing court's August 7, 2002 order imposing two consecutive life sentences plus ten years did not comply with the directions of the Court of Appeal to impose a sentence of fourteen years to life on Count 1. It is unclear how the 2002 sentencing court arrived at a sentence of two consecutive life terms plus ten years, but it appears that the error was that of the court in calculating the sentence, not a simple error in recording the judgment. In correcting that error in its November 2, 2005 order, the sentencing court stated that it was "modif[ying] the judgment." The court did not then suggest that it was merely correcting an error in the recording of the judgment. Furthermore, the court expressly stated it was not otherwise modifying the judgment, which suggests that the court believed it still had the authority to modify the judgment. In practical effect, the November 2, 2005 order substantially modified the judgment and "materially alter[ed] the rights of the parties" by imposing a term of fourteen years to life on Count 1. The record does not "clearly demonstrate" that the court's prior error had been merely a clerical error in the recording of the judgment. See In re Candelario, 3 Cal. 3d at 705 (amendment of abstract of judgment to include mention of a prior conviction was not the correction of a "clerical error").

Accordingly, the November 2, 2005 order was an "intervening judgment" within the meaning of Magwood.18 Hence, the present Petition is not "second or successive."

For an additional reason, Ground Three of the Petition is not second or successive. See 28 U.S.C. § 2244(b); Allen v. Ornoski, 435 F.3d 946, 950 (9th Cir.), cert. denied, 546 U.S. 1136 (2006) (considering each claim independently in determining whether claims were second or successive). In Ground Three, Petitioner challenges the trial court's 2014 refusal to permit Petitioner to file a notice of appeal from that court's denial of Petitioner's motion to vacate. Because Petitioner could not have raised this claim in his 2002 federal petition, this claim is not second or successive. See Magwood, 561 U.S. at 346 ("if the petitioner had no fair opportunity to raise the claim in the prior application, a subsequent application raising that claim is not `second or successive,' and § 2244(b)(2)'s bar does not apply"); Hill v. State of Alaska, 297 F.3d 895, 898-99 (9th Cir. 2002) (petition challenging parole conditions and calculation of release date not second or successive to prior petitions challenging conviction and sentence, where petitioner had no opportunity to assert present claims in prior petitions).

II. Grounds One and Two of the Petition Are Untimely.

The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners:

"AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis." Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).

A. Finality of Petitioner's Conviction

Petitioner's conviction did not become final until the conclusion of direct review after issuance of the modified judgment on November 2, 2005. See Burton v. Stewart, 549 U.S. 147, 156-57 (2007) (when a state appellate court remands for resentencing, the limitations period does not begin to run on any claim until direct review of the resentencing is final); see also United States v. LaFromboise, 427 F.3d 680, 683-84 (9th Cir. 2005) (without a final sentence, the one-year statute of limitation under section 2255 has not begun to run); Cooper v. Harrington, 2010 WL 1644508, at *3 (E.D. Cal. Apr. 21, 2010) ("Where, as here, the California Court of Appeal remands a case to the Superior Court to issue an amended judgment to reflect the appellate court's opinion, the petitioner's conviction becomes final for purposes of federal habeas review upon conclusion of direct review of the amended judgment or upon expiration of time for seeking such review.").19 Because Petitioner did not appeal, his conviction would have become final on January 1, 2006, sixty days from the date of sentencing, had January 1, 2006 not been a Sunday or a holiday. See Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006); People v. Knauer, 206 Cal.App.3d 1124, 1127 & n.2, 253 Cal.Rptr. 910 (1988); former Cal. Ct. R. 31(d).20 Because January 1, 2006, was a Sunday, the New Year's Day holiday was observed on Monday, January 2, 2006. See North Pacifica LLC v. Calif. Coastal Comm'n, 166 Cal.App.4th 1416, 1423 n.5, 83 Cal.Rptr.3d 636 (2008). Therefore, Petitioner's conviction became final on Tuesday, January 3, 2006. See Cal. Code Civ. Proc. §§ 12, 12a, 135.

Accordingly, the statute of limitations began running on January 4, 2006, unless subsections B, C or D of 28 U.S.C. section 2244(d)(1) apply to delay accrual. See 28 U.S.C. § 2244(d)(1)(A); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge).

B. Delayed Accrual

1. Subsection 2244(d)(1)(B)

Subsection B of section 2244(d)(1) is inapplicable. Petitioner does not allege, and the record does not show, that any illegal conduct by the state or those acting for the state "made it impossible for him to file a timely § 2254 petition in federal court." See Ramirez v. Yates, 571 F.3d 993, 1000-01 (9th Cir. 2009).

2. Subsection 2244(d)(1)(C)

Subsection C of section 2244(d)(1) is also inapplicable. Petitioner does not assert any claim based on a constitutional right "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." See Dodd v. United States, 545 U.S. 353, 360 (2005) (construing identical language in section 2255 as expressing "clear" congressional intent that delayed accrual inapplicable unless the United States Supreme Court itself has made the new rule retroactive); Tyler v. Cain, 533 U.S. 656, 664-68 (2001) (for purposes of second or successive motions under 28 U.S.C. section 2255, a new rule is made retroactive to cases on collateral review only if the Supreme Court itself holds the new rule to be retroactive); Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002), cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity principles of Teague v. Lane, 489 U.S. 288 (1989) to analysis of delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)).

3. Subsection 2244(d)(1)(D)

Under section 2244(d)(1)(D), the "`due diligence' clock starts ticking when a person knows or through diligence could discover the vital facts, regardless of when their legal significance is actually discovered." Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir.), cert. denied, 133 S.Ct. 769 (2012); see Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001); see also United States v. Pollard, 416 F.3d 48, 55 (D.C. Cir. 2005), cert. denied, 547 U.S. 1021 (2006) (habeas petitioner's alleged "ignorance of the law until an illuminating conversation with an attorney or fellow prisoner" does not satisfy the requirements of section 2244(d)(1)(D)).

With respect to Ground One of the Petition, the record does not indicate when Petitioner received notice of the Superior Court's November 2, 2005 order modifying Petitioner's sentence. In the Superior Court's November 12, 2010 order denying Petitioner's November 10, 2010 petition, the Superior Court stated, inter alia, that Petitioner had raised this issue in a "slightly different form" in his "10/27/03 petition" (Respondent's Lodgment 21). However, the record does not contain the October 27, 2003 petition.

In any event, Petitioner did assert Ground One of the present Petition in his "Application for Leave to File Second or Successive Petition, etc.," filed September 23, 2009 in the Ninth Circuit. Petitioner signed that Application on September 17, 2009. Thus, Petitioner knew of the "vital facts" underlying Ground One no later than September 17, 2009. Therefore, Ground One accrued no later than September 17, 2009.

With respect to Ground Two, Petitioner knew or should have known, no later than the expiration of sixty days after the Superior Court's November 2, 2005 sentencing order the "vital facts" underlying Petitioner's claim that his counsel allegedly failed to file a timely notice of appeal from that order. As to Ground Two, therefore, Section 2244(d)(1)(D) does not delay accrual beyond January 3, 2006, the date Petitioner's conviction became final.

In Ground Three, Petitioner challenges the trial court's 2014 refusal to permit Petitioner to file a notice of appeal from that court's April 9, 2014 denial of Petitioner's motion to vacate. The record does not indicate when Petitioner received notice of the trial court's refusal, but Petitioner knew of the denial at least by May 1, 2014, when he signed the "Motion to File a Constructive Notice of Appeal, etc.," filed in the California Court of Appeal. Thus, Ground Three accrued no later than May 1, 2014.

In sum, Ground One of the Petition accrued no later than September 17, 2009. The limitations period for Ground One commenced the next day, September 18, 2009, and, absent tolling or an equitable exception, expired on September 17, 2010. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.), cert. denied, 534 U.S. 978 (2001). Ground Two of the Petition accrued no later than January 3, 2006. The limitations period for Ground Two commenced the next day, January 4, 2006, and, absent tolling or an equitable exception, expired on January 3, 2007. Petitioner constructively filed the present Petition on its signature date of November 13, 2014.21 Absent tolling or an equitable exception, Grounds One and Two of the Petition are untimely. Ground Three of the Petition did not accrue until 2014. Thus, Ground Three was filed within the one year statute of limitations. However, for the reasons discussed in section III, infra, Ground Three is meritless on its face.

C. Statutory Tolling

Section 2244(d)(2) tolls the statute of limitations during the pendency of "a properly filed application for State post-conviction or other collateral review." The statute of limitations is not tolled between the conviction's finality and the filing of Petitioner's first state habeas petition. See Porter v. Ollison, 620 F.3d at 958.

1. Ground One

As indicated above, the statute commenced running on Ground One no later than September 18, 2009. The statute was not tolled during the pendency of Petitioner's "Application for Leave to File Second or Successive Petition, etc." in the Ninth Circuit. See Duncan v. Walker, 533 U.S. 167 (2001) (pendency of federal petition does not toll the statute of limitations); Clemens v. MacDonald, 2011 WL 1260047, at *9 (E.D. Cal. Mar. 30, 2011) (pendency of application for leave to file successive petition in the Ninth Circuit did not toll AEDPA statute of limitations). Petitioner filed his next state court petition, his petition for coram nobis in the California Court of Appeal, on September 21, 2010, after the one-year limitations period had expired with respect to Ground One. State court applications filed after the expiration of the limitations period cannot revive or otherwise toll the statute. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003) (filing of state habeas petition "well after the AEDPA statute of limitations ended" does not affect the limitations bar); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 (2000) ("[a] state-court petition . . . that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled"). Accordingly, statutory tolling does not rescue Ground One from the bar of limitations.

2. Ground Two

As indicated above, the statute commenced running on Ground Two no later than January 4, 2006. The statute ran for 136 days (from January 4, 2006, to May 30, 2006). On May 31, 2006, Petitioner filed his Court of Appeal habeas petition in case number B191352. The statute then was tolled from May 31, 2006, through June 15, 2006, the date of the Court of Appeal's decision in that case. As of June 15, 2006, 229 days remained in the limitations period for Ground Two. However, Petitioner then waited over a year and a half before filing his next state petition on February 6, 2008 (the petition in Court of Appeal case number B205460). Petitioner is not entitled to statutory tolling for the year and a half between the denial of the petition in case number B191352 and the filing of the petition in case number B205460. See Evans v. Chavis, 546 U.S. 189, 191 (2006) (no gap tolling for unexplained six month delay); Stewart v. Cate, 757 F.3d 929 (9th Cir.), cert. denied, 135 S.Ct. 341 (2014) (no gap tolling for 100 day delay; benchmark for reasonableness of such delays remains 30-60 days); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (no gap tolling for unjustified delays of 115 and 101 days). Accordingly, even assuming arguendo the petition in case number B205460 otherwise would have qualified for statutory tolling during the pendency of that case,22 the limitations period for Ground Two expired long before Petitioner filed his petition in that case. As discussed above, state court applications filed after the expiration of the limitations period cannot revive or otherwise toll the statute. See Ferguson v. Palmateer, 321 F.3d at 823; Jiminez v. Rice, 276 F.3d at 482; Webster v. Moore, 199 F.3d at 1259. Accordingly, statutory tolling does not rescue Ground Two from the bar of limitations.

D. Equitable Tolling

The statute of limitations is subject to equitable tolling "in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). "[A] `petitioner' is entitled to `equitable tolling' only if he shows `(1) that he has been pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Lawrence v. Florida, 549 U.S. 327, 336 (2007). The threshold necessary to trigger equitable tolling "is very high, lest the exceptions swallow the rule." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 558 U.S. 897 (2009) (citations and internal quotations omitted). Petitioner bears the burden to show equitable tolling. See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009).

Petitioner makes no effort to argue equitable tolling, and the record shows no basis for equitable tolling. Indeed, Petitioner does not dispute Respondent's argument that the Petition is untimely. Instead, Petitioner seeks to rely on the "actual innocence" equitable exception to the statute of limitations (see Opposition to Motion to Dismiss, pp. 5-7).

E. Petitioner's Alleged Actual Innocence

"[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . [or] expiration of the statute of limitations." McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013); see also Lee v. Lampert, 653 F.3d 929, 934-37 (9th Cir. 2011) (en banc). "[T]enable actual-innocence gateway pleas are rare." McQuiggin v. Perkins, 133 S. Ct. at 1928. The Court must apply the standards for gateway actual innocence claims set forth in Schlup v. Delo, 513 U.S. 298 (1995) ("Schlup"). See McQuiggin v. Perkins, 133 S. Ct. at 1928. "[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." Id. (quoting Schlup, 513 U.S. at 329).

In order to make a credible claim of actual innocence, a petitioner must "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; see also Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003), cert. denied, 541 U.S. 998 (2004) (holding that "habeas petitioners may pass Schlup's test by offering `newly presented' evidence of actual innocence"); Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) ("[A] claim of actual innocence must be based on reliable evidence not presented at trial.").

"`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998); Calderon v. Thompson, 523 U.S. 538, 559 (1998); Muth v. Fondren, 676 F.3d 815, 819, 822 (9th Cir.), cert. denied, 133 S.Ct. 292 (2012). "The evidence of innocence `must be so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'" Lee v. Lampert, 653 F.3d at 937-38 (quoting Schlup, 513 U.S. at 316). The court must consider "`all the evidence, old and new, incriminating and exculpatory,' admissible at trial or not." Lee v. Lampert, 653 F.3d at 938 (quoting House v. Bell, 547 U.S. 518, 538 (2006)). The court must make a "probabilistic determination about what reasonable, properly instructed jurors would do." Id. (quoting House v. Bell, 547 U.S. at 538).

Petitioner argues he is "innocent" of the attempted murder alleged in Count 1 because the court took the verdict on Count 2 prior to the rendering of the verdict on Count 1, assertedly in violation of due process and the Double Jeopardy Clause (Opposition to Motion to Dismiss, p. 6). According to Petitioner, the jury thereby impliedly acquitted Petitioner on Count 1 (id.).

Petitioner's "actual innocence" argument fails for two reasons. First, there is no evidence Petitioner is factually innocent of attempted murder. Petitioner argues only his purported "innocence" based on the "implied acquittal" claimed in Count 1. Petitioner's claim is a claim of legal innocence, not factual innocence. See Selsor v. Kaiser, 22 F.3d 1029, 1035 (10th Cir. 1994) (double jeopardy claim asserts legal, not factual innocence); Marshall v. Trammell, 2011 WL 3022248, at *1 (W.D. Okla. July 22, 2011) (same); Harms v. Conway, 2007 WL 2265116, at *6 (D. Idaho Aug. 6, 2007) (same); Felicetty v. Bianco, 2003 WL 21402544, at *3 (D. Del. June 10, 2003) (same).

Second, contrary to Petitioner's argument, there was no implied acquittal on Count 1. "[T]he Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense." Brown v. Ohio, 432 U.S. 161, 169 (1977). However, the Fifth Amendment does not prevent the state from prosecuting a defendant for both greater and lesser offenses in a single trial. Ohio v. Johnson, 467 U.S. 493, 500 (1984). "The Fifth Amendment's Double Jeopardy Clause prohibits retrial after an acquittal, whether express or implied by jury silence." Brazzel v. Washington, 491 F.3d 976, 981 (9th Cir. 2007) (citation omitted); see also People v. Anderson, 47 Cal.4th 92, 108, 97 Cal.Rptr.3d 77, 211 P.3d 584, cert. denied, 559 U.S. 941 (2010). "An implied acquittal occurs when a jury returns a guilty verdict as to a lesser included or lesser alternate charge, but remains silent as to other charges, without announcing any signs of hopeless deadlock." Brazzel v. Washington, 491 F.3d at 981 (citation omitted). However, where the jury deadlocks on a greater offense, a verdict of guilty on a lesser offense is not an implied acquittal of the greater. See United States v. Jefferson, 566 F.3d 928, 932-33, 935-36 (9th Cir. 2009); see People v. Fields, 13 Cal.4th 289, 302, 52 Cal.Rptr.2d 282, 914 P.2d 832 (1996).

Here, after the jury indicated it had reached a verdict on Count 2, the court took that verdict. Although the foreperson indicated the jury had deadlocked on Count 1, the court's polling of the jurors suggested the jury was not deadlocked. Ultimately, the jury rendered a guilty verdict on Count 1. Petitioner argues that, under California's alleged "acquittal first" rule, the jury's verdict of guilty on Count 2 automatically and impliedly acquitted Petitioner of the attempted murder alleged in Count 1.

Under California law, a court may instruct the jury that it may not return a verdict on a lesser offense unless the jury has agreed that the defendant is not guilty of the greater offense alleged. See People v. Fields, 13 Cal. 4th at 303-04; People v. Kurtzman, 46 Cal.3d 322, 329, 250 Cal.Rptr. 244, 758 P.2d 572 (1988).23 However, a guilty verdict on a lesser offense is not an automatic implied acquittal of a greater offense. People v. Fields, 13 Cal. 4th at 303-05. Indeed, where the jury renders a verdict only on a lesser offense, the trial court may direct the jury to reconsider its verdict in light of the "acquittal first" rule. Id. at 310.

Here, although the foreperson initially indicated a deadlock on Count 1, the jury eventually reached a guilty verdict on that count. Petitioner's apparent argument that the jury foreperson's initial statement regarding deadlock constituted an implied acquittal is foreclosed by Blueford v. Arkansas, 132 S.Ct. 2044 (2012). In that case, the trial court instructed the jury on capital murder, first degree murder, manslaughter and negligent homicide. Id. at 2049. After several hours of deliberations, the jury foreperson notified the court of a deadlock. Id. In response to the court's inquiry, the foreperson indicated that the jury was "unanimous against" the capital murder and first degree murder charges and was deadlocked on the manslaughter charge. Id. The court gave an Allen instruction24 and told the jury to continue deliberating. Id. Later, the foreperson again indicated a deadlock, and the court declared a mistrial. Id. On retrial, the trial court denied the defendant's motion to dismiss the capital murder and first degree murder counts on Double Jeopardy grounds. Id. The state supreme court upheld the trial court's decision. Id. at 2049-50.

The United States Supreme Court affirmed, holding inter alia that the foreperson's report that the jury unanimously had rejected the capital murder and first degree murder counts "was not a final resolution of anything." Id. at 2050. The Blueford Court observed that, at the time of the foreperson's report to the trial court concerning the jury votes on those counts, "the jury's deliberations had not yet concluded" and the jury returned to the jury room to deliberate further. Id. "The fact that deliberations continued after the [foreperson's] report deprives that report of the finality necessary to constitute an acquittal on the murder offenses." Id. Similarly here, the jury continued to deliberate, even after the foreperson reported the existence of a supposed deadlock, and the jury eventually arrived at a verdict of guilty on Count 1. Under Blueford v. Arkansas, the foreperson's initial report of deadlock could not have been an implied acquittal on Count 1.

The fact that the jury rendered its verdicts on Counts 1 and 2 in two stages did not effect an implied acquittal on Count 1. In Ohio v. Johnson, supra, an indictment charged the defendant with murder, involuntary manslaughter, robbery and grand theft. Ohio v. Johnson, 467 U.S. at 594. The defendant pled guilty to the two lesser charges of involuntary manslaughter and grand theft. Id. at 594-96. The trial court accepted the pleas, imposed sentence and dismissed the remaining charges on the ground that, because the involuntary manslaughter and grand theft counts were lesser included offenses of the murder and robbery counts, respectively, the Double Jeopardy Clause assertedly barred continued prosecution of the greater offenses after acceptance of the plea on the lesser offenses. Id. at 496. The Ohio Supreme Court affirmed the trial court's decision. Id. at 496-97. The United States Supreme Court reversed, however. The Ohio v. Johnson Court rejected the contention that "a determination of guilt and punishment on one count of a multicount indictment immediately raises a double jeopardy bar to continued prosecution on any remaining counts that are greater or lesser included offenses of the charge just concluded." Id. at 501. The Court observed that the acceptance of a guilty plea to a lesser included offense while greater offenses remained pending raised "none of the implications of an `implied acquittal' . . ." Id. at 502. Accordingly, the announcement of a verdict on Count 2 at Petitioner's trial did not constitute an "implied acquittal" or otherwise preclude a subsequent, valid guilty verdict on Count 1.

For all of the foregoing reasons, Petitioner has not met his burden of demonstrating "actual innocence" of the attempted murder alleged in Count 1. Petitioner is not entitled to the "actual innocence" equitable exception to the statute of limitations. Therefore, Grounds One and Two of the Petition are barred as untimely.

III. Ground Three Fails on the Merits.

In Ground Three, Petitioner alleges that the trial court violated the Constitution and state law by refusing to permit Petitioner to file a notice of appeal from that court's April 9, 2014 denial of Petitioner's motion to vacate (Petition, p. 6; Pet. Mem., pp. 9-10). As a matter of law, this claim does not merit federal habeas relief.

To the extent Petitioner claims that the trial court violated state law, the claim fails because federal habeas relief is unavailable for mere violations of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis). Furthermore, federal habeas relief is unavailable to redress claims of alleged procedural error in state collateral proceedings. See Cooper v. Neven, 641 F.3d 322, 331-32 (9th Cir.), cert. denied, 132 S.Ct. 558 (2011); Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998), cert. denied, 526 U.S. 1123 (1999); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.), cert. denied, 493 U.S. 1012 (1989).

Furthermore, any alleged constitutional error was harmless under the harmless error standard for federal habeas corpus cases set forth in Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (forbidding a grant of habeas relief for a non-structural error unless the error had a "substantial and injurious effect or influence" on the outcome of the case). After the Superior Court rejected Petitioner's notice of appeal, Petitioner sought review by filing a "Motion to File a Constructive Notice of Appeal in This Court, etc." in the California Court of Appeal, in case number B256105 (see Respondent's Lodgment 27). Therein, Petitioner argued that the Superior Court allegedly violated Petitioner's constitutional rights by denying Petitioner his right to appeal (id., p. 2). The Court of Appeal construed the motion as a petition for writ of mandate and denied the petition (Respondent's Lodgment 28).

In California "[a] writ of mandate will lie to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station . . . upon the verified petition of the party beneficially interested, in cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law." Calif. Correctional Supervisors Organization, Inc. v. Dep't of Corrections et al., 96 Cal.App.4th 824, 827, 117 Cal.Rptr.2d 595 (2002) (citations and internal quotations omitted); see Brooks v. Small Claims Court, 8 Cal.3d 661, 105 Cal.Rptr. 785, 504 P.2d 1249 (1973) (issuing writ of mandate to compel lower court to allow petitioner to file notice of appeal); see Cal. Code Civ. P. §§ 1085, 1086. Here, the Court of Appeal denied the writ, signifying that the Court of Appeal did not disagree with the Superior Court's rejection of Petitioner's notice of appeal on the ground that the issue presented in the notice of appeal previously had been litigated.25 Therefore, even if the Superior Court had permitted the filing of Petitioner's notice of appeal, it is plain that the appeal would not have been successful. In such circumstances, the Superior Court's rejection of Petitioner's notice of appeal could not have had any "substantial and injurious effect or influence" on the outcome of Petitioner's state court collateral proceedings.

RECOMMENDATION

For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.