DANIEL P. JORDAN, III, District Judge.
This habeas petition is before the Court on United States Magistrate Judge F. Keith Ball's Report and Recommendation  in which he recommends dismissal. Petitioner Baron Easter filed his Objection , the State filed its Response , and Easter responded with a Motion to Strike  because he disagreed with the State's arguments. Having fully considered the premises, the Court concludes that the Report and Recommendation should be adopted in part, as further explained below, and that the petition should be dismissed as untimely. Easter's motion should be denied because disputed legal arguments are no basis for striking a response.
After his conviction for sale of cocaine and sentence based on habitual offender status, Easter filed a timely appeal before the Mississippi Supreme Court. The appeal was pursued by counsel other than Easter's trial counsel and included, among other claims, an assertion that trial counsel had been ineffective. The Mississippi Supreme Court denied the appeal on May 6, 2004. Easter v. State, 878 So.2d 10 (Miss. 2004). No further appeal was taken, and judgment became final November 3, 2004.
More than eight years later, Easter filed a motion for post-conviction relief in state court arguing two new grounds for relief based on ineffective assistance of his trial counsel. First, he contends that counsel failed to file a demurrer challenging the Indictment's compliance with Mississippi procedural rules. Though he concedes that the Indictment provided notice, he contends that the list of prior convictions in the Indictment should not have appeared in an appended exhibit but should have instead appeared before the words "against the peace and dignity of the State of Mississippi." Second, Easter asserts that counsel failed to object to a jury instruction that identified a confidential informant who was listed in the Indictment but not then identified by name. The Mississippi Supreme Court denied Easter's application for postconviction relief as untimely and meritless on February 13, 2013, and Easter thereafter filed his federal petition March 26, 2013. In it, Easter focuses entirely on the claims he first raised in his request for post-conviction relief.
Magistrate Judge Ball concluded that Easter's federal habeas petition was untimely under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d) because he filed it nearly seven and one-half years after his state judgement became final. In doing so, Judge Ball acknowledged Easter's equitable arguments for filing late: (1) that he filed for post-conviction relief after learning of a Mississippi Supreme Court decision in 2013 that would allow him further state-court review; and (2) actual innocence. In his Objection, Easter elaborates on these two issues offering further explanation that was not available to the magistrate judge. Though these arguments still fall short, they require analysis not presented in the Report and Recommendation.
Pursuant to § 2244(d), Easter was required to seek federal habeas review within one year of his state-court judgment becoming final. That never happened, but exceptions exist. First, the statute itself delays the running of the AEDPA's limitations period in certain contexts not here applicable. 28 U.S.C. § 2244(d)(1). Second, § 2244(d)(2) tolls the limitations period during state post-conviction review, but no review was filed during the initial one year. In addition to these statutory provisions, § 2244(d)'s deadline "is subject to equitable tolling in appropriate cases." Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). Finally, a showing of actual innocence creates an "equitable exception" to the AEDPA's one-year statute of limitations. McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013). This petition turns on the equitable arguments.
A. Equitable Tolling
Respondent argued in its Motion to Dismiss that Easter had not explained the long delay in bringing these two new claims. Easter acknowledged the argument in response and stated that "at the time  he discovered the factual predicate of his claims, he was procedurally barred from raising his claims in the state courts...." Pet.'s Response  at 2. That statement is demonstrably untrue as the factual predicate for the claims existed before his conviction and could have been raised in the same direct appeal that challenged other aspects of his trial counsel's performance.
In his Objection, Easter takes a different but somewhat related approach, arguing that his brother retained post-conviction counsel in March 2005, approximately eight months before his initial deadline to file under § 2244. Believing that his matter was in hand, Easter "became caught up in the ordinary incidents of prison life." Objection  at 2. But unbeknown to Easter, the attorney-who is not identified in the record-never filed a petition for post-conviction review. And, as with his first explanation, Easter asserts that his new claims were procedurally barred by the time he learned of the attorney's malfeasance.
The Court will assume for argument that counsel dropped the ball as Easter now asserts. Arguably, this failure could present exceptional circumstances allowing equitable tolling. See Maples v. Thomas, 132 S.Ct. 912, 924 (2012). But "a 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 and prevented timely filing." Holland, 130 S.Ct. at 2562 (citation omitted and punctuation altered). Easter was not diligent.
Easter learned of the lawyer's failings in 2009 yet delayed filing his application for post-conviction relief in state court until March 2013. Objection  at 2. To cure that defect, Easter asserts that he was procedurally barred from pursing these new grounds in state court- i.e., exhausting-until the Mississippi Supreme Court decided Rowland v. State, 42 So.3d 503 (Miss. 2010). According to Easter, Rowland established-for the first time-that the duty of Mississippi courts to consider time-barred claims regarding fundamental rights is mandatory and not discretionary. Easter therefore argues that having failed to raise these issues on direct appeal or on post-conviction ...