Regimen C. Caldwell v. E. Valenzuela

Filing 18

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge R. Gary Klausner for Report and Recommendation (Issued) 16 . IT IS THEREFORE ORDERED that the Petition is denied as time-barred, that this action is dismissed with prejudice, and that Judgment be entered accordingly. See Order for details. (dml)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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REGIMEN C. CALDWELL,

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Petitioner,

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v.
E. VALENZUELA, et al.,

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Respondents.

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Case No. CV 14-2567 RGK(JC)
(PROPOSED) ORDER ACCEPTING
FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS OF
UNITED STATES MAGISTRATE
JUDGE

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of

19 Habeas Corpus by a Person in State Custody (“Petition”) and all of the records
20 herein, including the attached Report and Recommendation of United States
21 Magistrate Judge (“Report and Recommendation”), and petitioner’s objections to
22 the Report and Recommendation (“Objections”). The Court has further made a de
23 novo determination of those portions of the Report and Recommendation to which
24 objection is made. The Court concurs with and accepts the findings, conclusions,
25 and recommendations of the United States Magistrate Judge (with one correction
26 to a footnote)1 and overrules the Objections.
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This Court notes that footnote 6, which appears on page 4 of the Report and
Recommendation contains an incorrect date and corrects such footnote so that it reads as
(continued...)

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The Court further specifically addresses certain Objections raised by

2 petitioner.
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First, contrary to petitioner’s contention (Objections at 2), given the

4 extensive information in the record regarding the reasons for the delay in
5 petitioner’s filings, the Court need not conduct an evidentiary hearing on this issue.
6 Cf. Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (evidentiary hearing not
7 required where “the record is amply developed, and . . . it indicates that the
8 petitioner’s mental incompetence was not so severe as to cause the untimely filing
9 of his habeas petition”), cert. denied, 132 S. Ct. 286 (2011).
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Second, this Court rejects petitioner’s assertion that his “actual innocence”

11 should serve as a gateway through which he can pass and which should compel this
12 Court to consider the merits of his claims. (Objections at 2-3). In rare and
13 extraordinary cases, a plea of actual innocence can serve as a gateway through
14 which a petitioner may pass to overcome the statute of limitations otherwise
15 applicable to federal habeas petitions. McQuiggin v. Perkins, 133 S. Ct. 1924,
16 1928 (2013); see also Lee v. Lampert, 653 F.3d 929, 934-37 (9th Cir. 2011) (en
17 banc). “[A] petitioner does not meet the threshold requirement unless he [or she]
18 persuades the district court that, in light of the new evidence, no juror, acting
19 reasonably, would have voted to find him [or her] guilty beyond a reasonable
20 doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995). In order to make a
21 credible claim of actual innocence, a petitioner must “support his allegations of
22 constitutional error with new reliable evidence – whether it be exculpatory
23 scientific evidence, trustworthy eyewitness accounts, or critical physical evidence
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(...continued)

26 follows: “Respondents assert that the First State Petition was filed on December 8, 2008.
27 (Respondents’ Memo at 1). The First State Petition in the record is not file-stamped. (Lodged
Doc. 1). The order denying the First State Petition reflects that the First State Petition was filed

28 on December 4, 2008. (Lodged Doc. 2).”

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1 – that was not presented at trial.” Schlup, 513 U.S. at 324. The habeas court then
2 “consider[s] all the evidence, old and new, incriminating and exculpatory,
3 admissible at trial or not.” Lee, 653 F.3d at 938 (internal quotations omitted; citing
4 House v. Bell, 547 U.S. 518, 538 (2006)). On this record, the court “must make a
5 ‘probabilistic determination about what reasonable, properly instructed jurors
6 would do.’” House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 329).
7 Unexplained or unjustified delay in presenting new evidence is a “factor in
8 determining whether actual innocence has been reliably shown.” Perkins, 133 S.
9 Ct. at 1928, 1935; Schlup, 513 U.S. at 332 (“A court may consider how the timing
10 of the submission and the likely credibility of a [petitioner’s] affiants bear on the
11 probable reliability of . . . evidence [of actual innocence].”). Here, petitioner has
12 not submitted new, reliable evidence to cast doubt on his conviction to permit the
13 Court to consider his otherwise time-barred claims.
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IT IS THEREFORE ORDERED that the Petition is denied as time-barred,

15 that this action is dismissed with prejudice, and that Judgment be entered
16 accordingly.
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IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the

18 Report and Recommendation, and the Judgment herein on petitioner and counsel
19 for respondents.
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DATED: December 2, 2014

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________________________________________

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HONORABLE R, GARY KLAUSNER
UNITED STATES DISTRICT JUDGE

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