Gomes v. Ryan

Filing 23

ORDER ADOPTING 21 Report and Recommendation of Magistrate Judge Metcalf. Petitioner's Petition for Writ of Habeas Corpus (Doc. 1 ) is dismissed and denied with prejudice. A Certificate of Appealability is denied and the Clerk shall close this case. Signed by Senior Judge Paul G Rosenblatt on 6/17/13. (LSP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

Lawrence Eugene Gomes,

9
10
11

Petitioner,
v.
Charles L. Ryan, et. al.,

12

Respondents.

)
)
)
)
)
)
)
)
)

No. 12-CV-1908-PHX-PGR (JFM)

ORDER

13
14
15
16
17

Before the Court is the Report and Recommendation of Magistrate Judge Metcalf
(Doc. 21), which addresses Petitioner’s Petition for Writ of Habeas Corpus, filed on
September 10, 2012, pursuant to 28 U.S.C. § 2254. (Doc. 1.) Petitioner filed objections to
the Report and Recommendation. (Doc. 22.)

18
19
20
21
22

Magistrate Judge Metcalf recommends that the Court deny the petition as barred by
the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty
Act, 28 U.S.C. § 2244(d)(1)(A).1 Specifically, Magistrate Judge Metcalf concludes that
Petitioner is not eligible for statutory or equitable tolling. (Doc. 21 at 6–9.) Magistrate Judge
Metcalf also notes that Petitioner did not raise a claim of actual innocence. (Id. at 10.)

23
24
25

Magistrate Judge Metcalf’s conclusions are correct. Petitioner is ineligible for
statutory tolling because each of his PCR petitions was dismissed as untimely under state
law; none of the petitions was “properly filed” so as to toll the statute of limitations. 28

26
1

27
28

On November 12, 2003, Petitioner was indicted in the Maricopa County Superior Court
on three counts of armed robbery and one count of attempted robbery. He entered into a plea
agreement and pled no contest on July 22, 2004. His conviction became final on October 20,
2004, and the statute of limitations expired on October 20, 2005.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

U.S.C. §2244(d)(2); Pace v. DiGuglielmo, 544 U.S. 408 (2005). Petitioner is ineligible for
equitable tolling because he failed to meet the exceptionally high burden required for a
showing of “extraordinary circumstances beyond a prisoner’s control [that] make it
impossible to file a petition on time.” Law v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003).
Petitioner did not show that his mental condition affected his ability to meet the filing
deadline.
In his objection to the Report and Recommendation, Petitioner for the first time raises
a claim of “actual innocence.” (Doc. 22.) This claim falls short of the standard required to
open a gateway to consideration of his untimely claims.
A claim of actual innocence “does not merely require a showing that a reasonable
doubt exists in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 329 (1995).
Rather, “a petitioner does not meet the threshold requirement [for an actual innocence claim]
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. 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.” Id. at 324. Because such evidence is rare, in most
cases allegations of actual innocence are ultimately summarily rejected. Id.; see House v.
Bell, 547 U.S. 518, 538 (2006) (noting that the burden of showing actual innocence is
demanding and seldom met); McQuiggin v. Perkins, --- S. Ct. ----, 2013 WL 2300806 at *3
(2013) (explaining that “tenable actual-innocence gateway pleas are rare”).
Petitioner’s actual innocence claim consists of an allegation that he was “picked out

23
of a photo line-up that he was never in.” (Doc. 22 at 2.) He also alleges that the prosecution
24
suppressed this evidence of mistaken identity. (Id.) In support of these allegations Petitioner
25
has submitted a booking photo dated July 7, 2002, and a photographic lineup. (Id.) These
26
documents are not sufficiently reliable or credible to support a claim of actual innocence.
27
28
- 2 -

1
2
3
4
5
6
7
8
9
10

Having reviewed this matter de novo in light of Petitioner’s objections, the Court will
adopt the Report and Recommendation, deny the habeas petition, and dismiss the action.
Accordingly,
IT IS HEREBY ORDERED that Magistrate Judge Metcalf’s Report and
Recommendation (Doc. 21) is ACCEPTED and ADOPTED by the Court.
IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus
(Doc. 1) is DISMISSED and DENIED with prejudice.
IT IS FURTHER ORDERED DENYING a Certificate of Appealability.
IT IS FURTHER ORDERED that the Clerk of the Court shall close this case.
DATED this 17th day of June, 2013.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 3 -