Charles Frank Evans v. Teri Gonzalez

Filing 4

ORDER SUMMARILY DISMISSING CASE by Judge Valerie Baker Fairbank. (See document for details). Case Terminated. Made JS-6. (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CHARLES FRANK EVANS,

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Petitioner,

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vs.

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TERRI GONZALEZ, Warden,

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Respondent.

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CASE NO. CV 12-4472 VBF (RZ)

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ORDER SUMMARILY DISMISSING
HABEAS ACTION

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Rule 4 of the Rules Governing Section 2254 Cases in the United States

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District Courts provides in part that “[i]f it plainly appears from the face of the petition and

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any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the

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judge shall make an order for its summary dismissal and cause the petitioner to be

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notified.” Petitioner’s only claim is that he is “actually innocent.” This assertion supplies

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no cognizable basis for federal habeas relief. Accordingly, the Court will dismiss the

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action summarily.

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I.

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INTRODUCTION

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Petitioner was convicted of conspiracy to commit murder in 1995. His

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appeals ended over a decade ago. In 2011, he began a series of unsuccessful state habeas

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petitions, asserting in each the sole claim of “actual innocence.” Pet. ¶ 6. After the

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California Supreme Court denied relief on April 11, 2012, he filed the present federal

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habeas petition, again asserting only that new evidence shows him to be “actually

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innocent.”

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II.

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“ACTUAL INNOCENCE” MAY EXCUSE UNTIMELINESS OR

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PROCEDURAL DEFAULT BUT SUPPLIES NO FREESTANDING

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BASIS FOR FEDERAL HABEAS RELIEF

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Even if Petitioner’s submissions demonstrate that he is “actually innocent” of

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conspiracy to commit murder, he still states no cognizable basis for federal habeas relief.

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“Actual innocence,” once it is rigorously proven in a test that is not relevant here, is not a

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freestanding federal claim but rather supplies only a “gateway” through which other claims

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may pass for consideration on their merits when they otherwise would be barred. In Schlup

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v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), the Supreme Court held that

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“actual innocence” may permit a petitioner to file an otherwise-barred successive petition.

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In Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc), the Ninth Circuit construed the

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“actual innocence” gateway to permit consideration of untimely petitions. (Petitioner,

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whose action challenging a 17-year old conviction otherwise appears untimely, indeed

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prominently cites Lee.)

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But “actual innocence” is only a “gateway” to permit consideration of other

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claims that would otherwise be barred. It is“‘not itself a constitutional claim . . . .’”

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Schlup, 513 U.S. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122

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L.Ed.2d 203 (1993)); see Rocha v. Thaler, 626 F.3d 815, 818, 824-25 (10th Cir. 2010)

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(rejecting argument that proof of “actual innocence” alone necessitated grant of habeas

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relief even to petitioner facing death penalty). In Lee, for example, the petitioner asserted

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several other, true claims. Petitioner does not. Relief is plainly unavailable.

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The Court has considered granting Petitioner leave to amend, but in this

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particular instance that would be futile. Petitioner expressly indicates that the only claim

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he recently exhausted in the California courts was “actual innocence.” Thus, any possible

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claim(s) that Petitioner might add in an amended petition would be unexhausted.

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III.

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CONCLUSION

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For the foregoing reasons, the Court DISMISSES the action with prejudice.

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DATED: 6-22-12

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VALERIE BAKER FAIRBANK
UNITED STATES DISTRICT JUDGE

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