Carlos Herrera-Villate v. W Knipp

Filing 17

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge James V. Selna, The Court accepts the findings and recommendations of the Magistrate Judge. IT IS HEREBY ORDERED that Respondents Motion to Dismiss the Petition as untimely be granted and that judgment be entered denying the Petition for Writ of Habeas Corpus and dismissing this action with prejudice. Report and Recommendation (Issued) 15 (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 CARLOS HERRERA-VILLATE, 12 Petitioner, 13 v. 14 W. KNIPP, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-0134-JVS (JEM) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings, the records on file, 18 and the Report and Recommendation of the United States Magistrate Judge. Petitioner has 19 filed Objections, and the Court has conducted a de novo review of those portions of the 20 Report and Recommendation to which Petitioner has objected. 21 Petitioner argues for the first time in his Objections that he is actually innocent of the 22 underlying crime and, therefore, is entitled to equitable tolling under Schlup v. Delo, 513 U.S. 23 298 (1995). (Objections at 6.) The Court is not required to consider allegations raised for the 24 first time in the Objections. United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). Even 25 if Petitioner had raised this argument in a timely manner, it is without merit, and he is not 26 entitled to equitable tolling. Under Schlup, a credible claim of actual innocence can constitute 27 an equitable exception to the AEDPA limitations period. See Lee v. Lambert, 653 F.3d 929, 28 1 932 (9th Cir. 2011) (en banc). However, in order to present otherwise time-barred claims to a 2 federal habeas court pursuant to Schlup, Petitioner has the heavy burden of producing “‘new 3 reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness 4 accounts, or critical physical evidence—that was not presented at trial’” that so strongly shows 5 his actual innocence “‘that it is more likely than not that no reasonable juror would have 6 convicted him in light of the new evidence.’” Id. at 938 (quoting Schlup, 513 U.S. at 324, 327). 7 Although Petitioner states in completely conclusory fashion that “he is ‘actual[ly] innocen[t] of 8 the crime,’” he does not identify any new reliable evidence or explain why such evidence 9 could not have been presented at trial, whether it is reliable, and how it necessarily shows that 10 no reasonable juror would have convicted him when compared with the evidence presented at 11 trial. Accordingly, Petitioner has failed to carry his burden of demonstrating that he is entitled 12 to equitable tolling based on actual innocence. The Court accepts the findings and 13 recommendations of the Magistrate Judge. 14 IT IS HEREBY ORDERED that Respondent’s Motion to Dismiss the Petition as 15 untimely be granted and that judgment be entered denying the Petition for Writ of Habeas 16 Corpus and dismissing this action with prejudice. 17 18 DATED: August 22, 2012 JAMES V. SELNA UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 2

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