The opinion of the court was delivered by: Seybert, District Judge
Petitioner, Jesse Friedman, seeks a writ of habeas corpus challenging the grounds for his 1988 guilty plea on seventeen counts of Sodomy in the First Degree, one count of Use of a Child in a Sexual Performance, four counts of Sexual Abuse in the First Degree, one count of Attempted Sexual Abuse in the First Degree, and two counts of Endangering the Welfare of a Minor. Petitioner proffered three grounds for his writ: (1) the prosecution failed to disclose eyewitnesses who denied that Petitioner committed any wrongdoing; (2) the police officers investigating the case used overtly suggestive and aggressive interrogation methods with the child witnesses; and (3) the state failed to disclose that at least one child witness underwent hypnosis prior to alleging that Petitioner sexually abused him. On July 20, 2007, this Court issued an Order dismissing Petitioner's first and second claims as untimely, but reserved decision on the third claim. On October 3, 2007, the parties held oral argument in open court on the issue of whether Petitioner's argument that the state failed to disclose the use of hypnosis was timely. For the reasons below, the Court finds that Petitioner's third claim, alleging that the prosecution failed to disclose the use of hypnosis on at least one accuser, is untimely.
The full facts of this case are discussed at length in the Court's July 20, 2007 Order. Accordingly, the Court will only address the facts relevant to Petitioner's pending claim. In 1988, Nassau County charged Petitioner, then nineteen years old, with several acts of sodomy, sexual abuse, and crimes against children. The charges alleged that Petitioner and his father, Arnold Friedman ("Friedman") (collectively, the "Friedmans"), abused young children who attended computer classes taught by Friedman in his Great Neck, New York, home. Thereafter, the Friedmans, along with the students and their families, became embroiled in a highly publicized case, which culminated in a guilty plea by both Petitioner and his father. Petitioner was sentenced to multiple terms aggregating six to eighteen years, and was ultimately released to parole supervision on December 7, 2001. (Pet. ¶ 5).
In the fall of 2000, while Petitioner was still incarcerated, documentary filmmaker Andrew Jarecki ("Jarecki") began investigating the Friedman case for a possible film. (Jarecki Aff. ¶ 2). Jarecki interviewed members of the Friedman family, many of the former computer class students, as well as prosecutors, law enforcement personnel, and attorneys involved with the case. (Id. ¶ 4). After a three-year investigation, Jarecki created Capturing the Friedmans, a documentary film depicting the accusations of abuse, the ensuing investigations, and the impact of the case on the Friedman family, the former students, and the Great Neck community. Petitioner viewed the film in its entirety for the first time on January 10, 2003. (Id. at ¶ 5; Pet's Aff. ¶ 56;). Petitioner claims that the film led him to discover that the prosecution had withheld several categories of exculpatory evidence, and argues that he would not have pled guilty if he had been aware of this undisclosed evidence. After exhausting his state court remedies, Petitioner brought a writ of habeas corpus on June 23, 2006, premised on the allegedly newly-discovered evidence.
As this Court dismissed Petitioner's first two categories of exculpatory evidence as untimely, we need only address the third: that at least one accuser, Gregory Doe, was hypnotized prior to making any accusations against Petitioner.
I. The AEDPA Statute Of Limitations
The AEDPA places a one year period of limitation on all applications for a writ of habeas corpus. See 28 U.S.C. § 2244(d)(1). The statute lists several events which trigger the start of the limitations period. The dispute in the instant case involves an interpretation of § 2244(d)(1)(D), which starts the one-year period on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Id.
Petitioner invokes this factual predicate provision to make his hypnosis claim timely. However, the parties dispute the date on which Petitioner discovered the factual predicate of his claim. Respondent argues that Petitioner knew the facts on January 10, 2003, when Petitioner watched the film and saw one of the former students allege that he had been hypnotized. If Petitioner knew, or could have known through the exercise of due diligence, of the facts after watching the film, the one-year limitations period would have began on January 10, 2003. On January 7, 2004, 362 days after watching the film, Petitioner filed a post-judgment motion in state court pursuant to New York Criminal Procedure Law §440.10. After the state court denied his motion, Petitioner sought permission to appeal, which the Appellate Division denied on March 10, 2006. Because the limitations period tolls while a state post-conviction motion is pending, Petitioner's clock started running again on March 10, 2006. According to Respondent's calculation, Petitioner had three days remaining on his limitations period, and therefore had to file his application for a writ of habeas corpus by March 13, 2006, making his June 23, 2006 application untimely.
Petitioner argues that his time began running in July of 2003, when he first gained access to the original materials Jarecki used for his film (hereinafter the "Jarecki materials"). Petitioner claims that he did not have any actual facts after watching the film because it merely portrayed an anonymous "person whose face [was] cloaked in shadows" and about whom there was no identifying information. Transcript of Oct. Hearing at 7, 06-CV-3136 (No. 23) (hereinafter "Hearing"). According to Petitioner, a motion would have been futile at that time because he did not know for a fact that the shadowed man was a complainant and had any relevance to his action. In July of 2003, Petitioner gained access to the Jarecki materials, which included transcripts of the interviews, and discovered that the cloaked man was Gregory Doe, a former student and complainant at Petitioner's Grand Jury Hearing. If the clock started running in July of 2003, Petitioner's current application would be timely. The discussion therefore turns on whether Petitioner knew, or could have known through the exercise of due diligence, that the prosecution may have withheld information regarding the use of hypnosis on former complainants in January of 2003, when Petitioner watched Capturing the Friedmans for the first time.
II. The Factual Predicate Exception
The date on which the limitations clock begins to tick for the factual predicate exception is a fact-specific question which is appropriately answered by the district court. See Wims v. United States, 225 F.3d 186, 191 (2d Cir. 2000). "The proper task in a case such as this one is to determine when a duly diligent person in petitioner's circumstances would have discovered" the basis for his petition. Id. at 190. Moreover, if it "plainly appears from the face of . . . [the] petition and ...