Pablo Morales v. Patrick Covello

Filing 24

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Josephine L. Staton re 17 . The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Adjudged that the Petition is denied and dismissed with prejudice. (Attachments: # 1 Report and Recommendation) (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 PABLO MORALES, ) NO. CV 20-850-JLS(E) ) Petitioner, ) ) v. ) REPORT AND RECOMMENDATION OF ) PATRICK COVELLO, Warden, ) UNITED STATES MAGISTRATE JUDGE ) Respondent. ) ______________________________) 16 17 18 This Report and Recommendation is submitted to the Honorable 19 Josephine L. Staton, United States District Judge, pursuant to 20 28 U.S.C. section 636 and General Order 05-07 of the United States 21 District Court for the Central District of California. 22 23 PROCEEDINGS 24 25 26 Petitioner filed a “Petition for Writ of Habeas Corpus By a 27 Person in State Custody” on January 28, 2020, accompanied by an 28 attached memorandum and exhibits. Respondent filed a “Motion to 1 Dismiss Petition, etc.” on March 6, 2020, asserting that the Petition 2 is untimely. Petitioner filed “Opposition etc.” on April 6,2020. 3 4 BACKGROUND 5 6 On March 30, 1978, Petitioner pled guilty to murder (Petition, 7 pp. 2, 3; Exhibits, p. 54).1 8 Petitioner to a term of seven years to life (Petition, p. 2; Exhibits, 9 p. 54). On April 27, 1978, the court sentenced Petitioner did not appeal (Petition, p. 3). 10 11 On October 4, 2013, Petitioner filed a habeas corpus petition in 12 the California Court of Appeal, challenging a denial of parole 13 (Respondent’s Lodgment 1). 14 denied the petition (Respondent’s Lodgment 2). 15 Petitioner filed a petition for review in the California Supreme 16 Court, which that court denied summarily on January 22, 2014 17 (Respondent’s Lodgment 3). On October 16, 2013, the Court of Appeal On November 4, 2013, 18 19 On March 19, 2019, Petitioner filed in the California Court of 20 Appeal a petition for writ of error coram vobis and to vacate the 21 judgment (Petition, Exhibits, pp. 44-75; Respondent’s Lodgment 4). 22 The Court of Appeal summarily denied the petition on April 5, 2019 23 (Respondent’s Lodgment 5). 24 25 26 On July 8, 2019, Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied summarily on 27 1 28 Because Petitioner’s exhibits do not bear sequential page numbers, the Court uses the ECF pagination. 2 1 November 20, 2019 (Petition, Exhibits, pp. 18-77; Respondent’s 2 Lodgments 6, 7). 3 4 PETITIONER’S CONTENTIONS 5 6 Petitioner contends: 7 8 9 10 1. Petitioner allegedly lacked the mental capacity to commit the crime or to plead guilty competently; the California Court of Appeal allegedly abused its discretion by rejecting these claims; 11 12 2. Petitioner’s trial counsel allegedly rendered ineffective 13 assistance by failing to present a “mental state” defense and/or an 14 insanity defense; and 15 16 3. The California Court of Appeal allegedly abused its 17 discretion by denying Petitioner’s coram vobis petition challenging 18 his conviction (Petition, attachment, pp. 1-5). 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 3 1 DISCUSSION 2 3 4 I. The Statute of Limitations Bars All of the Claims Alleging Error in Petitioner’s 1978 Conviction. 5 6 A. The Statute 7 8 The “Antiterrorism and Effective Death Penalty Act of 1996” 9 (“AEDPA”), signed into law April 24, 1996, amended 28 U.S.C. section 10 2244 to provide a one-year statute of limitations governing habeas 11 petitions filed by state prisoners: 12 13 (d)(1) A 1-year period of limitation shall apply to an 14 application for a writ of habeas corpus by a person in 15 custody pursuant to the judgment of a State court. 16 limitation period shall run from the latest of – The 17 18 (A) the date on which the judgment became final by the 19 conclusion of direct review or the expiration of the time 20 for seeking such review; 21 22 (B) the date on which the impediment to filing an 23 application created by State action in violation of the 24 Constitution or laws of the United States is removed, if the 25 applicant was prevented from filing by such State action; 26 27 (C) the date on which the constitutional right asserted was 28 initially recognized by the Supreme Court, if the right has 4 1 been newly recognized by the Supreme Court and made 2 retroactively applicable to cases on collateral review; or 3 4 (D) the date on which the factual predicate of the claim or 5 claims presented could have been discovered through the 6 exercise of due diligence. 7 8 (2) The time during which a properly filed application for 9 State post-conviction or other collateral review with 10 respect to the pertinent judgment or claim is pending shall 11 not be counted toward any period of limitation under this 12 subsection. 13 14 “AEDPA’s one-year statute of limitations in § 2244(d)(1) applies to 15 each claim in a habeas application on an individual basis.” 16 v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012). Mardesich 17 18 B. Accrual 19 20 Because Petitioner did not appeal, his conviction became final 21 sixty days after his April 27, 1978 sentencing. 22 449 F.3d 1065, 1067 (9th Cir. 2006); People v. Knauer, 206 Cal. App. 23 3d 1124, 1127 n.2, 253 Cal. Rptr. 910 (1988); Cal. Ct. R. 8.308(a). 24 However, because Petitioner’s conviction became final prior to the 25 April 24, 1996 effective date of the AEDPA, Petitioner had a one-year 26 “grace period” following April 24, 1996, within which to file a 27 federal habeas petition. 28 (2012); Rhoades v. Henry, 598 F.3d 511, 519 (9th Cir. 2010). See Mendoza v. Carey, See Wood v. Milyard, 566 U.S. 463, 468 5 1 Therefore, the statute of limitations began to run on April 25, 1996, 2 unless subsections B, C, or D of 28 U.S.C. section 2244(d)(1) furnish 3 a later accrual date. 4 2010) (AEDPA statute of limitations is not tolled between the 5 conviction’s finality and the filing of the first state collateral 6 challenge). Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 7 8 9 Subsection B of 28 U.S.C. section 2244(d)(1) has no application in the present case. Petitioner does not allege, and this Court finds 10 no indication, that any illegal state action prevented Petitioner from 11 filing the present Petition sooner. 12 13 Subsection C of 28 U.S.C. section 2244(d)(1) also has no 14 application in the present case. 15 “constitutional right” “newly recognized by the Supreme Court and made 16 retroactively applicable to cases on collateral review.” 17 United States, 545 U.S. 353, 360 (2005) (construing identical language 18 in section 2255 as expressing “clear” congressional intent that 19 delayed accrual inapplicable unless the United States Supreme Court 20 itself has made the new rule retroactive); Tyler v. Cain, 533 U.S. 21 656, 664-68 (2001) (for purposes of second or successive motions under 22 28 U.S.C. section 2255, a new rule is made retroactive to cases on 23 collateral review only if the Supreme Court itself holds the new rule 24 to be retroactive); Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 25 2002), cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity 26 principles of Teague v. Lane, 489 U.S. 288 (1989), to analysis of 27 delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)). 28 /// The Petition does not assert any 6 See Dodd v. 1 Application of subsection D of 28 U.S.C. section 2244(d)(1) also 2 does not furnish a date later than April 25, 1996, for commencement of 3 the one-year period of limitations. 4 diligence’ clock starts ticking when a person knows or through 5 diligence could discover the vital facts, regardless of when their 6 legal significance is actually discovered.” 7 F.3d 1230, 1235 (9th Cir.), cert. denied, 568 U.S. 1053 (2012); Hasan 8 v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001); see also United 9 States v. Pollard, 416 F.3d 48, 55 (D.D.C. 2005), cert. denied, 547 10 U.S. 1021 (2006) (habeas petitioner’s alleged “ignorance of the law 11 until an illuminating conversation with an attorney or fellow 12 prisoner” does not satisfy the requirements of section 2244(d)(1)(D)). 13 More than a decade before April 25, 1996, Petitioner knew, or with 14 reasonable diligence could have known, all of the facts on which he 15 bases his present claims challenging his 1978 conviction. 16 Superior Court’s acts and omissions, and those of Petitioner’s 17 counsel, were known in 1978. The diagnoses of “mild mental 18 retardation” and “mental illness” on which Petitioner now purports to 19 rely were known no later than 1985 (Petition at Ex. A, p. 35; 20 Opposition at 1). Under subsection D, the “‘due Ford v. Gonzalez, 683 The 21 22 In sum, Petitioner is not entitled to delayed accrual. Absent 23 tolling, therefore, the statute of limitations expired on April 24, 24 1997. 25 statute of limitations expires on the anniversary date of the date the 26 statute begins to run). 27 rescue the present Petition from the bar of limitations. 28 /// See Patterson v. Stewart, 251 F.3d 1243 (9th Cir. 2001) (AEDPA As discussed below, no theory of tolling can 7 1 C. Statutory Tolling 2 3 Section 2244(d)(2) tolls the statute of limitations during the 4 pendency of “a properly filed application for State post-conviction or 5 other collateral review.” 6 limitations is not tolled between the conviction’s finality and the 7 filing of Petitioner’s first state court habeas petition. 8 v. Ollison, 620 F.3d at 958; Nino v. Galaza, 183 F.3d 1003, 1006 (9th 9 Cir. 1999), cert. denied, 529 U.S. 1104 (2000). As previously indicated, the statute of See Porter 10 11 Petitioner did not file his first state court habeas petition 12 until 2013, long after the statute expired. 13 filed state court petitions cannot revive or otherwise toll the 14 statute. 15 cert. denied, 540 U.S. 924 (2003) (“section 2244(d) does not permit 16 the reinitiation of the limitations period that has ended before the 17 state petition was filed”); Jiminez v. Rice, 276 F.3d 478, 482 (9th 18 Cir. 2001), cert. denied, 538 U.S. 949 (2003) (filing of state habeas 19 petition “well after the AEDPA statute of limitations ended” does not 20 affect the limitations bar); Webster v. Moore, 199 F.3d 1256, 1259 21 (11th Cir.), cert. denied, 531 U.S. 991 (2000) (“[a] state-court 22 petition . . . that is filed following the expiration of the 23 limitations period cannot toll that period because there is no period 24 /// 25 /// 26 /// 27 /// 28 /// Petitioner’s belatedly See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), 8 1 remaining to be tolled”).2 2 statutory tolling. Therefore, Petitioner is not entitled to 3 4 D. Equitable Tolling 5 6 AEDPA’s statute of limitations is subject to equitable tolling 7 “in appropriate cases.” 8 (citations omitted). 9 tolling’ only if he shows ‘(1) that he has been pursuing his claims Holland v. Florida, 560 U.S. 631, 645 (2010) “[A] ‘petitioner’ is entitled to ‘equitable 10 diligently, and (2) that some extraordinary circumstance stood in his 11 way’ and prevented timely filing.” 12 DiGuglielmo, 544 U.S. 408, 418 (2005); accord, Menominee Indian Tribe 13 v. United States, 136 S. Ct. 750, 755-56 (2016); see also Lawrence v. 14 Florida, 549 U.S. 327, 336 (2007). 15 equitable tolling “is very high, lest the exceptions swallow the 16 rule.” 17 cert. denied, 558 U.S. 897 (2009) (citations and internal quotations 18 omitted). Id. at 649 (quoting Pace v. The threshold necessary to trigger Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), Petitioner bears the burden to show an entitlement to 19 20 21 22 23 24 25 26 27 28 2 Furthermore, even assuming arguendo that the statute began running on January 23, 2014, the day after the California Supreme Court denied Petitioner’s petition for review, (and even assuming that petition for review contained the claims in the instant Petition), Petitioner plainly would not be entitled to “gap” tolling between the Supreme Court’s 2014 denial and the Petitioner’s 2019 filing in the Court of Appeal. See Carey v. Saffold, 536 U.S. 214, 225 (2002) (California state habeas petition filed after unreasonable delay not “pending” for purposes of section 2244(d)(2)); see also Evans v. Chavis, 546 U.S. 189, 201 (2006) (unjustified six-month delay unreasonable); Stewart v. Cate, 757 F.3d 929, 935 (9th Cir.), cert. denied, 574 U.S. 900 (2014) (applying “thirty-to-sixty day benchmark” to determine the reasonableness of a delay in filing a subsequent state petition). 9 1 equitable tolling. See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th 2 Cir. 2009). 3 circumstances” were the “cause of his untimeliness.” 4 465 F.3d 964, 969 (9th Cir. 2006), cert. denied, 549 U.S. 1317 (2007) 5 (brackets in original; quoting Spitsyn v. Moore, 345 F.3d 796, 799 6 (9th Cir. 2003)). Petitioner must show that the alleged “extraordinary Roy v. Lampert, 7 8 9 Petitioner appears to argue that his asserted “mild mental retardation” and “mental illness” should entitle him to equitable 10 tolling. 11 rejected. For the reasons discussed below, such argument must be 12 13 In Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010), the 14 Ninth Circuit held that proof of a severe mental impairment can 15 qualify for equitable tolling where the petitioner meets a two-part 16 test: 17 18 (1) First, a petitioner must show his [or her] mental 19 impairment was an “extraordinary circumstance” beyond his 20 [or her] control [citation], by demonstrating the impairment 21 was so severe that either 22 23 (a) petitioner was unable rationally or factually to 24 personally understand the need to timely file, or 25 26 (b) petitioner’s mental state rendered him [or her] unable 27 personally to prepare a habeas petition and effectuate its 28 filing. 10 1 (2) Second, the petitioner must show diligence in pursuing the 2 claims to the extent he [or she] could understand them, but that 3 the mental impairment made it impossible to meet the filing 4 deadline under the totality of the circumstances, including 5 reasonably available access to assistance. [citation]. 6 7 In the present case, Petitioner has not demonstrated the 8 existence of any severe mental impairment which rendered him unable to 9 file a timely federal petition. Petitioner’s statements that he is a 10 “mental health patient” who has been diagnosed with “mild mental 11 retardation” and “mental illness” fall far short of establishing the 12 requirements for tolling set forth in Bills v. Clark. 13 Secretary, 2012 WL 6007314, at *6 (M.D. Fla. Dec. 3, 2012) (“Simply 14 claiming one has been diagnosed as mildly retarded does not establish 15 entitlement to equitable tolling”). 16 the conclusion that Petitioner suffered from any mental impairment 17 rendering him unable to file a timely federal petition. See Gray v. Nothing in the record supports 18 19 To the contrary, Petitioner’s alleged mental problems did not 20 prevent him from filing several actions in the federal courts in the 21 1990’s.3 22 United States District Court for the Eastern District of California, 23 in Morales v. Gifford, case number 1:94-cv-05350-REC-SMS. 24 litigated this action for more than a year before the district court 25 dismissed the action without prejudice. In 1994, Petitioner filed a civil rights action in the Petitioner 26 27 28 3 The Court takes judicial notice of the docket and documents filed in Petitioner’s prior federal actions described herein. See Porter v. Ollison, 620 F.3d at 954-55 n.1. 11 1 On February 19, 1997, while the statute of limitations was 2 running, Petitioner filed another civil rights action in the United 3 States District Court for the Eastern District of California, in 4 Morales v. Parker, case number 2:97-cv-00262-GEB-DAD. 5 filed an amended complaint on April 22, 1997, again while the statute 6 of limitations was running. 7 entry of default and several discovery-related motions, and he also 8 submitted letters and documents to the court. 9 dismissed the action without prejudice on August 18, 1998. Petitioner Petitioner thereafter filed a motion for The court eventually Petitioner 10 later filed a notice of appeal, but the Ninth Circuit dismissed the 11 appeal for lack of jurisdiction. 12 13 The fact that Petitioner filed and prosecuted these federal 14 actions in the 1990’s, including during the running of the limitations 15 period, belies Petitioner’s assertions that any alleged mental 16 difficulties were the cause of Petitioner’s failure to file a timely 17 federal habeas petition. 18 Petitioner in filing and prosecuting these federal actions does not 19 alter this conclusion. 20 analysis of whether a petitioner’s mental impairment warrants 21 equitable tolling takes into account “reasonably available access to 22 assistance”). The possibility that someone assisted See Bills v. Clark, 628 F.3d at 1100 (the 23 24 Furthermore, and even assuming arguendo Petitioner suffered from 25 truly disabling mental disabilities for some period of time after the 26 commencement of the limitations period so as to entitle Petitioner to 27 equitable tolling, Petitioner’s filing of additional federal court 28 actions in 2014 shows that equitable tolling for any earlier period(s) 12 1 of time would not rescue the present Petition from the bar of 2 limitations. 3 4 On March 27, 2014, Petitioner filed a petition for writ of 5 mandate in the Ninth Circuit in Morales v. United States District 6 Court, case number 14-70921. 7 for lack of jurisdiction on June 12, 2014. The Ninth Circuit dismissed the petition 8 9 On April 8, 2014, Petitioner filed a civil rights action in the 10 United States District Court for the Southern District of California, 11 in Morales v. State of Calif., case number 3:14-cv-00880-BTM-BGS. 12 Court dismissed the action on August 4, 2014. The 13 14 Thus, any possible purported equitable tolling ended when 15 Petitioner exhibited an ability to file federal actions in 2014, some 16 six years ago. 17 assertion that Petitioner was unable to file a federal petition until 18 recently. 19 federal actions without filing a timely federal habeas petition, also 20 demonstrates Petitioner’s lack of diligence. The filing of those actions compellingly refutes any The fact that Petitioner was able to, and did, file prior 21 22 This Court further observes that nothing in Petitioner’s 23 October 4, 2013 state habeas petition, petition for review or 24 March 19, 2019 petition for writ of error coram vobis reflects that 25 Petitioner was suffering from any mental impairment so severe that 26 Petitioner was “unable rationally or factually to personally 27 understand the need to timely file” or that his mental state “rendered 28 him unable personally to prepare a habeas petition and effectuate its 13 1 filing.” See Bills v. Clark, 628 F.3d at 1099-1100; see also Alva v. 2 Busby, 588 Fed. App’x 621, 622 (9th Cir. 2014) (equitable tolling 3 based on Bills v. Clark unavailable where the petitioner “does not 4 claim that he did not understand the need to file timely, or that his 5 mental condition made it impossible for him to prepare the petition 6 personally. . . . 7 prepare the petition in a timely manner for any reason aside from his 8 lack of understanding of the law”); Davis v. Mule Creek Prison, 2015 9 WL 4342854, at *1 (C.D. Cal. July 10, 2015) (“petitioner’s conclusory He does not claim that he personally was unable to 10 statement that he suffers from mental illness and receives mental 11 health care while incarcerated is insufficient to demonstrate that 12 petitioner is entitled to equitable tolling . . .”); cf. Yeh v. 13 Martel, 751 F.3d 1075, 1078 (9th Cir.), cert. denied, 574 U.S. 996 14 (2014) (the petitioner’s demonstrated ability to file court actions, 15 including a state court habeas petition, refuted claim of mental 16 impairment so debilitating as to warrant equitable tolling). 17 18 Additionally, the record shows that Petitioner was able to, and 19 did, participate extensively in prison programming. 20 “Psychological Evaluation” of Petitioner prepared for the Board of 21 Parole Hearings records that: (1) during the interview Petitioner “was 22 able to effectively understand and communicate”; (2) from May 29, 2003 23 until November of 2004, Petitioner worked as a recreational aide and 24 as a porter, the latter position resulting in an assessment of 25 “exceptional above-average work performance”; (3) from November 24, 26 2003 to February 10, 2004, Petitioner participated in an effective 27 communication group; (4) from August 11, 2004 through September 29, 28 2005 Petitioner worked as a clothing room clerk and vocational dry 14 A May 4, 2008 1 cleaning worker, receiving positive reviews; (5) from October 22, 2005 2 through October 26, 2007, Petitioner worked as a vocational engineer 3 and received satisfactory reviews; (6) from October 2006 through 4 December 2, 2006, Petitioner participated in Alcoholics’ Anonymous; 5 (7) in May of 2006, Petitioner received a participation chrono for 6 completing an anger management program (Petition, Exhibits, pp. 30- 7 40). 8 Petitioner lacked the mental capacity to file a timely federal 9 petition. Such prison programming further refutes any suggestion See Orthel v. Yates, 795 F.3d 935, 939 (9th Cir. 2015) 10 (court cited the petitioner’s prison programming, which demonstrated 11 that the petitioner possessed “substantial mental competence,” in 12 rejecting an argument for equitable tolling based on the petitioner’s 13 alleged mental incompetence). 14 15 Additionally, the transcript of Petitioner’s 2008 parole hearing, 16 which is attached to Petitioner’s October 4, 2013 habeas petition (see 17 Respondent’s Lodgment 1), further dispels any suggestion that 18 Petitioner’s mental state supposedly prevented him from filing a 19 federal petition until recently. 20 that he had not taken any psychotropic medications for two years (id., 21 p. 41). 22 from participating in the hearing (id., pp. 41-42). 23 coherently described his version of the crime (claiming the crime was 24 the fault of PCP), his family, his substance abuse history, his prison 25 programming and his parole plans (id., pp. 49-61, 67-73). 26 the transcript suggests that Petitioner then was: (a) unable 27 rationally or factually to understand the need to file timely; or 28 (b) unable personally to prepare a habeas petition and effectuate its At the hearing, Petitioner stated Petitioner denied suffering any disability preventing him 15 Petitioner Nothing in 1 filing. As to both (a) and (b), the transcript demonstrates the 2 contrary.4 3 4 In sum, Petitioner’s demonstrated abilities to participate in 5 court litigation, prison programming and administrative proceedings 6 compellingly refutes Petitioner’s current conclusory allegations of 7 mental incapacity. 8 equitable tolling. As a matter of law, Petitioner is not entitled to 9 10 E. Actual Innocence 11 12 “[A]ctual innocence, if proved, serves as a gateway through which 13 a petitioner may pass whether the impediment is a procedural bar . . . 14 [or] expiration of the statute of limitations.” 15 569 U.S. 383, 386 (2013); see also Lee v. Lampert, 653 F.3d 929, 934- 16 37 (9th Cir. 2011) (en banc). 17 gateway pleas are rare.” 18 Court must apply the standards for gateway actual innocence claims set 19 forth in Schlup v. Delo, 513 U.S. 298 (1995) (“Schlup”). 20 McQuiggin v. Perkins, 569 U.S. at 386. 21 the threshold requirement unless he persuades the district court that, 22 in light of the new evidence, no juror [or other trier of fact], McQuiggin v. Perkins, However, “tenable actual-innocence McQuiggin v. Perkins, 569 U.S. at 386. See “[A] petitioner does not meet 23 24 25 26 27 28 4 The Court also observes that the evaluating psychologist stated in 2008 that Petitioner’s “thinking was well organized and goal directed and he was able to express his thoughts in a clear, coherent manner. Memory, language functioning, pace of speed and cognition were all considered to be within normal limits” (Petition, Exhibit A at 33). In 2008, Petitioner told the psychologist that Petitioner “no longer has any mental health issues” (id.). 16 The 1 acting reasonably, would have voted to find him guilty beyond a 2 reasonable doubt.” Id. (quoting Schlup, 513 U.S. at 329). 3 4 In order to make a credible claim of actual innocence, a 5 petitioner must “support his allegations of constitutional error with 6 new reliable evidence - whether it be exculpatory scientific evidence, 7 trustworthy eyewitness accounts, or critical physical evidence - that 8 was not presented at trial.” 9 Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003), cert. denied, Schlup, 513 U.S. at 324; see also 10 541 U.S. 998 (2004) (holding that “habeas petitioners may pass 11 Schlup’s test by offering ‘newly presented’ evidence of actual 12 innocence”); Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (“[A] 13 claim of actual innocence must be based on reliable evidence not 14 presented at trial.”). 15 16 “‘[A]ctual innocence’ means factual innocence, not mere legal 17 insufficiency.” 18 Calderon v. Thompson, 523 U.S. 538, 559 (1998); Muth v. Fondren, 676 19 F.3d 815, 819, 822 (9th Cir.), cert. denied, 568 U.S. 894 (2012). 20 “The evidence of innocence ‘must be so strong that a court cannot have 21 confidence in the outcome of the trial unless the court is also 22 satisfied that the trial was free of nonharmless constitutional 23 error.’” Lee v. Lampert, 653 F.3d at 937-38 (quoting Schlup, 513 U.S. 24 at 316). The court must consider “‘all the evidence, old and new, 25 incriminating and exculpatory,’ admissible at trial or not.” 26 Lampert, 653 F.3d at 938 (quoting House v. Bell, 547 U.S. 518, 538 27 (2006). 28 reasonable, properly instructed jurors would do.” Bousley v. United States, 523 U.S. 614, 623 (1998); Lee v. The court must make a “probabilistic determination about what 17 Id. (quoting House 1 v. Bell, 547 U.S. at 538). 2 3 Petitioner has produced no evidence, much less new evidence, to 4 demonstrate his alleged actual innocence of the charge to which he 5 pled guilty. 6 claim of actual innocence. 7 885 (9th Cir. 2013) (petitioner’s plea “simply undermine[d]” his claim 8 of actual innocence); Chestang v. Sisto, 522 Fed. App’x 389, 390 (9th 9 Cir.), cert. denied, 571 U.S. 1012 (2013) (petitioner’s plea In any event, Petitioner’s plea tends to refute any See Johnson v. Medina, 547 Fed. App’x 880, 10 “seriously undermine[d]” his claim of actual innocence); Stonebarger 11 v. Williams, 458 Fed. App’x 627, 629 (9th Cir. 2011), cert. denied, 12 566 U.S. 927 (2012) (denying certificate of appealability on claim of 13 actual innocence, where no reasonable juror would deem petitioner to 14 be actually innocent in light of his confession, his guilty plea and 15 the lack of any facts inconsistent with guilt); People v. McNabb, 228 16 Cal. App. 3d 462, 470-71, 279 Cal. Rptr. 11 (1991) (“the issue of 17 guilt or innocence is waived by a guilty plea”).5 18 Petitioner is not entitled to an equitable exception to the statute of 19 limitations. 20 /// 21 /// 22 /// Therefore, 23 24 25 26 27 28 5 In Smith v. Baldwin, 510 F.3d 1127, 1140 n.9 (9th Cir. 2007) (en banc), cert. denied, 555 U.S. 830 (2008), the Ninth Circuit flagged but declined to decide the issue of when, if ever, an “actual innocence” gateway claim can be available to a petitioner who has pled guilty or no contest. Under the circumstances of the present case, Petitioner’s plea appears highly material to the Schlup analysis. See, e.g., Stonebarger v. Williams, 458 Fed. App’x at 629. 18 1 II. All Claims Alleging Error During Petitioner’s 2019 State Post- 2 Conviction Review Proceedings Fail to Raise any Issue Cognizable 3 on Federal Habeas Corpus. 4 5 Federal habeas corpus relief may be granted “only on the ground 6 that [Petitioner] is in custody in violation of the Constitution or 7 laws or treaties of the United States.” 8 errors in the application of state law are not cognizable on federal 9 habeas review. 28 U.S.C. § 2254(a). Mere Id.; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) 10 (“it is not the province of a federal habeas corpus court to reexamine 11 state-court determinations on state-law questions”); accord Pulley v. 12 Harris, 465 U.S. 37, 41 (1984). 13 14 Accordingly, “federal habeas relief is not available to redress 15 alleged procedural errors in state post-conviction proceedings.” 16 Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998), cert. denied, 526 17 U.S. 1123 (1999); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.), 18 cert. denied, 493 U.S. 1012 (1989) (“a petition alleging errors in the 19 state post-conviction review process is not addressable through habeas 20 corpus proceedings”). 21 in the state appeals process. 22 4590740, at *23 (C.D. Cal. Aug. 28, 2013) (applying Franzen v. 23 Brinkman to a claim alleging that the California Supreme Court’s 24 denial of a petition for review was procedurally improper); Madrid v. 25 Marshall, 1995 WL 91329, *2 (N.D. Cal. Jan. 30, 1995), aff’d, 99 F.3d 26 1146 (9th Cir. 1996), cert. denied, 519 U.S. 1130 (1997) (“Petitioner 27 alleges that the California Court of Appeal erred in striking his 28 supplemental brief contesting issues his appellate counsel would not This rule applies to alleged procedural errors See Paniagua v. Gipson, 2013 WL 19 1 raise. Because Petitioner’s assertions of error in the state post- 2 conviction review process do not represent an attack on his detention, 3 they are not addressable through habeas corpus proceedings”) (citing 4 Frazen v. Brinkman). 5 erred in 2019 by not remanding the matter to the trial court or 6 otherwise, any such procedural errors would not entitle Petitioner to 7 federal habeas relief. Thus, even if the California Court of Appeal 8 9 RECOMMENDATION 10 11 For the reasons discussed above, IT IS RECOMMENDED that the Court 12 issue an order: (1) accepting and adopting this Report and 13 Recommendation; and (2) denying and dismissing the Petition with 14 prejudice.6 15 16 DATED: April 14, 2020. 17 18 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 6 25 26 27 28 Petitioner’s requests for the appointment of counsel are denied. Petitioner has failed to demonstrate a prima facie case of present incompetence or present inability to articulate Petitioner’s claims as a result of mental illness or otherwise. See Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir.), cert. denied, 479 U.S. 867 (1986); compare Allen v. Calderon, 408 F.3d 1150 (9th Cir. 2005). 20 1 2 NOTICE Reports and Recommendations are not appealable to the Court of 3 Appeals, but may be subject to the right of any party to file 4 objections as provided in the Local Rules Governing the Duties of 5 Magistrate Judges and review by the District Judge whose initials 6 appear in the docket number. 7 Federal Rules of Appellate Procedure should be filed until entry of 8 the judgment of the District Court. No notice of appeal pursuant to the 9 If the District Judge enters judgment adverse to Petitioner, the 10 District Judge will, at the same time, issue or deny a certificate of 11 appealability. 12 and Recommendation, the parties may file written arguments regarding 13 whether a certificate of appealability should issue. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Within twenty (20) days of the filing of this Report

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