Torrance Egan Black v. Jim Robertson

Filing 20

FINAL REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE issued by Magistrate Judge Alka Sagar. Re: MOTION to Dismiss the First Amended Petition for Writ of Habeas Corpus 8 , First Amended Petition for Writ of Habeas Corpus 4 (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

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TORRANCE EGAN BLACK,

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Petitioner,

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v.
JIM ROBERTSON,

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Respondent.

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Case No. CV 20-11823-MCS (AS)

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FINAL REPORT AND RECOMMENDATION
OF A UNITED STATES MAGISTRATE
JUDGE

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This Final Report and Recommendation is submitted to the
Honorable

Mark C. Scarsi, United States District Judge, pursuant

to 28 U.S.C. § 636 and General Order 05-07 of the United States
District Court for the Central District of California.

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I. PROCEEDINGS

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On December 29, 2020, Torrance Egan Black (“Petitioner”)

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constructively filed a Petition for Writ of Habeas Corpus by a

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Person

in

Federal

Custody

pursuant

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28

1

to

28

U.S.C.

§

2241

1

(“Petition”).

(Dkt. No. 1).1

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3

On January 28, 2021,

Petitioner constructively filed a First

4

Amended Petition for Writ of Habeas Corpus by a Person in Federal

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Custody pursuant to 28 U.S.C. § 2241 (Dkt. No. 4),2 which the Court

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construed as a First Amended Petition by a Person in State Custody

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pursuant to 28 U.S.C. § 2254 (“First Amended Petition”) (see Dkt

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No. 5 at 1-2).

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The First Amended Petition asserts the following claims for

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federal habeas relief:

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hear or try the case against Petitioner; (2) Petitioner was

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extradited from Michigan to California based on an unauthorized

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demand; and (3) Petitioner is not required to exhaust his state

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remedies on Grounds One and Two of the First Amended Petition

(1) The trial court lacked jurisdiction to

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1

The Petition and an attached Proof of Service by Mail
were signed on December 29, 2020, and the Petition was filed with
the Clerk of the Court on December 31, 2020.
A habeas petition is constructively filed on the date a
prisoner presents his federal habeas petition to prison authorities
for forwarding to the Clerk of the Court. Saffold v. Newland, 250
F.3d 1262, 1268 (9th Cir. 2000), vacated on other grounds, 536 U.S.
214 (2002); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001).
The Court will consider December 29, 2020, the date on which the
Petition and the attached Proof of Service by Mail were signed, as
the filing date.
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The First Amended Petition and an attached Proof of
Service by Mail were signed on January 28, 2021, and the First
Amended Petition was filed with the Clerk of the Court on February
1, 2021. The Court will consider January 28, 2021, the date on
which the First Amended Petition and the attached Proof of Service
by Mail were signed, as the filing date.

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2

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because exhaustion would be futile. (First Amended Petition at 3-4

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[3 pages]).3

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4

On March 3, 2021, Respondent filed a Motion to Dismiss the

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First

6

contending that the First Amended Petition is time barred.

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Motion to Dismiss at 1, Memorandum of Points and Authorities

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[“Memorandum”] at 3-5).

Amended

Petition

(“Motion

to

Dismiss”)(Dkt.

No.

8),
(See

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On March 24, 2021, Petitioner filed an Opposition to the
Motion to Dismiss (“Opposition”).

(Dkt. No. 15).

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13

On

April

5,

2021,

the

Court

issued

a

Report

and

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Recommendation, recommending that the District Judge grant the

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Motion to Dismiss, deny the First Amended Petition, and dismiss

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this action with prejudice.

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Petitioner filed an Objection to the Report and Recommendation

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(“Objection”).

(Dkt. No. 17).

On April 23, 2021,

(Dkt. No. 19).

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This Final Report and Recommendation now issues.

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For the reasons stated below, it is recommended that the First

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Since the extradition claim alleged in Ground Two of the
First Amended Petition appears to correspond to the sole claim
alleged in the Petition, (see Petition at 3-3(a) [2 pages]), the
Court will use the constructive filing date of the Petition
(December 29, 2020), in its analysis of the statute of limitations.

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3

1

Amended Petition be DENIED and this action be DISMISSED with

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prejudice.

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II.

BACKGROUND

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On August 14, 1998, Petitioner was convicted (pursuant to a

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plea) in Los Angeles County Superior Court, Case Number BA099731,

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of three counts of first degree murder in violation of California

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Penal Code (“P.C.”) § 187(a) (Counts 1, 3 and 4), one count of

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attempted murder in violation of P.C. §§ 664/187(a) (Count 5), and

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one count of second degree robbery in violation of P.C. § 211

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(Count 2), and admitted the special allegations that he committed

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multiple murders in violation of P.C. § 190.2(a)(3) and that he

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committed one of the murders during a robbery in violation of P.C.

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§ 190.2(a)(17).

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pleaded guilty to one count of first degree murder in violation of

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P.C. § 187, in San Bernardino County Superior Court, Case Number

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FWV16149.

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at 1,4 No. 3 at 1, No. 5 at 13-17, No. 17 at 34-35; First Amended

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Petition at 2).

As part of the plea agreement, Petitioner also

(See Respondent’s Notice of Lodging [“Lodgment”] No. 1

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On August 20, 1998, the trial court in the San Bernardino

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County Superior Court case sentenced Petitioner, in accordance with

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the terms of the plea agreement, to state prison for 25 years to

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26

4

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The Court refers to page numbers of lodged documents
using the ECF numbering system.

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4

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life on the first degree murder conviction. (See Lodgment No. 2 at

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1-4, No. 3 at 2).

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Angeles

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accordance with the terms of the plea agreement, to state prison

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for life without the possibility of parole on Counts 1,3 and 4, a

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concurrent term of 7 years on Count 5, and a concurrent term of 3

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years on Count 2.

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First Amended Petition at 2).

County

On October 2, 1998, the trial court in the Los

Superior

Court

case

sentenced

Petitioner,

in

(See Lodgment No. 1 at 4-7, No. 17 at 36-38;

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Petitioner did not appeal his convictions or sentence to the

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California Court of Appeal or the California Supreme Court.

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First Amended Petition at 2; http://appellatecases.courtinfo.ca.gov

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[last visited April 5, 2021]).

(See

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State Habeas Petitions

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Petitioner filed the following state habeas petitions:5

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On December 7, 2016, Petitioner filed a habeas petition with

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the Los Angeles County Superior Court, which, on January 27, 2017,

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denied the petition.

(See Lodgment No. 1 at 3, No. 17 at 39-40).

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5

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Since, as discussed infra, Petitioner did not file the
habeas petitions within the limitations period, he is not entitled
to the benefit of the “mailbox rule” in which a petition is deemed
filed at the time it is delivered to prison authorities for
forwarding to the Court. Stillman v. LaMarque, 319 F.3d 1199, 1201
(9th Cir. 2003). Accordingly, the Court will consider the date on
which these petitions were filed as the filing date.

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5

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On December 8, 2016, Petitioner filed a habeas petition with

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the San Bernardino County Superior Court, which, on January 10,

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2017, denied the petition.

(See Lodgment No. 4).

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5

On December 3, 2019, and January 6, 2020, Petitioner filed a

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second habeas petition and a petition for dismissal pursuant to

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P.C. § 1385, respectively, with the Los Angeles County Superior

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Court.

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Court denied both petitions on January 22, 2020, and January 23,

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2020.

(See Lodgment Nos. 5-6).

The Los Angeles County Superior

(See Lodgment Nos. 7-8).

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On December 9, 2019 (while Petitioner’s second Los Angeles

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County Superior Court habeas petition was pending), Petitioner

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filed a second habeas petition with the San Bernardino County

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Superior Court, which denied the petition on January 31, 2020.

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(See Lodgment Nos. 9-11).

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On January 7, 2020 (while Petitioner’s second habeas petitions

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were pending in the Los Angeles County Superior Court and the San

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Bernardino

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petition with the California Court of Appeal, which denied the

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petition on January 13, 2020.

County

Superior

Court),

Petitioner

filed

a

habeas

(See Lodgment Nos. 12-14).

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On January 10, 2020 (while Petitioner’s first California Court

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of Appeal habeas petition was pending), Petitioner filed a second

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habeas petition with the California Court of Appeal, which denied

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the petition on March 18, 2020.

(See Lodgment Nos. 15-16, 18-19).

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3

On January 17, 2020, January 24, 2020, and February 3, 2020,

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respectively (while Petitioner’s second California Court of Appeal

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habeas petition was pending), Petitioner filed habeas petitions

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with the California Supreme Court, (see Lodgment Nos. 21, 23, 25),

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were denied on April 15, 2020. (See Lodgment No. 20, 22, 24).

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On December 9, 2020, Petitioner filed a third habeas petition

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with the Los Angeles County Superior Court. (See Lodgment No. 1 at

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3).

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County Superior Court had not yet ruled on the petition.

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Motion to Dismiss, Memorandum at 2).

According to Respondent, as of March 3, 2021, the Los Angeles
(See

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On January 14, 2021 (after the instant Petition was filed),

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Petitioner filed a petition for resentencing pursuant to P.C. §

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1170.95 in the Los Angeles County Superior Court.

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No. 1 at 3).

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for resentencing was scheduled for March 18, 2021.

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Dismiss, Memorandum at 2).6

(See Lodgment

According to Respondent, a hearing on the petition
(See Motion to

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As stated above, the Petition was constructively filed on
December

29,

2020,

and

the

First

Amended

Petition

was

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The status of the petition for resentencing is not
material to the Court’s analysis of the statute of limitations and
the timeliness of the Petition and the First Amended Petition
before the Court.

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constructively filed on January 28, 2021.

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III.

DISCUSSION

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1.

The Petition is Time Barred

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A.

The Limitations Period

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The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

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applies to the Petition because it was filed after the statute’s

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effective date of April 24, 1996.

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320, 322-23 (1997).

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federal habeas petitions within one-year of the latest of the

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following dates:

See Lindh v. Murphy, 521 U.S.

Under AEDPA, state prisoners must file their

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(A)

the date on which the judgment became final by the
conclusion of direct review or the expiration of
the time for seeking such review;

(B)

the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from filing
by such State action;

(C)

the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if
the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review; or

(D)

the date on which the factual predicate of the
claim or claims presented could have been
discovered through the exercise of due diligence.

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28 U.S.C. § 2244(d)(1).

“AEDPA’s one-year statute of limitations
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in § 2244(d)(1) applies to each claim in a habeas application on an

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individual basis.”

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Cir. 2012).

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properly files an application for state post-conviction review

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(statutory tolling) and may also be tolled during reasonable

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periods

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tolling).

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408, 410 (2005).

of

Mardesich v. Cate, 668 F.3d 1164, 1171 (9th

The limitations period is tolled when a prisoner

time

between

such

state

habeas

proceedings

(gap

28 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo, 544 U.S.

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AEDPA’s limitations period may also be tolled for equitable

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reasons “in appropriate cases.”

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645 (2010).

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equitable

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situations where “extraordinary circumstances beyond a prisoner’s

15

control make it impossible to file a petition on time.” Spitsyn v.

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Moore, 345 F.3d 796, 799 (9th Cir. 2003).

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establish that: (1) he has been pursuing his rights diligently; and

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(2) some extraordinary circumstance caused the delay. Holland, 560

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U.S. at 649.

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Spitsyn, 345 F.3d at 799.

Holland v. Florida, 560 U.S. 631,

The Ninth Circuit recognizes the availability of

tolling

of

the

one-year

statute

of

limitations

in

A prisoner must

This is a highly fact-dependent determination.

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B.

Petitioner Did Not
Limitations Period

File

His

Petition

Within

The

As indicated above, a petitioner ordinarily has one-year from
the date that the state court’s judgment becomes final to file a
federal habeas petition.

See 28 U.S.C. § 2244(d)(1).
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A case

1

becomes final at “the conclusion of direct review or the expiration

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of the time for seeking such review.”

28 U.S.C. § 2244(d)(1)(A).

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4

Since Petitioner did not appeal his convictions or sentence to

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the California Court of Appeal or the California Supreme Court,

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Petitioner was unable to petition the United States Supreme Court

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for a writ of certiorari.

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Ct. R. 13.1.

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December 1, 1998, sixty days after he was sentenced in the Los

See 28 U.S.C. §§ 1257 and 2101(d); Sup.

Thus, Petitioner’s conviction became final on

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Angeles County Superior Court on October 2, 1998.

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of Court, Rule 8.308(a); former Cal. Rules of Court, Rule 31(a);

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see also Caspari v. Bohlen, 510 U.S. 383, 390 (1994)(“A state

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conviction and sentence become final for purposes of retroactivity

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analysis when the availability of direct appeal to the state courts

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has been exhausted and the time for filing a petition for a writ of

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certiorari has elapsed or a timely petition has been finally

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denied.”).

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to run on December 2, 1998 and, absent the application of an

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alternate start date under § 2244(d)(1),7 or sufficient statutory

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or equitable tolling, the limitations period expired one year

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later, on December 1, 1999.

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1243, 1246 (9th Cir. 2001).

See Cal. Rules

Therefore, the AEDPA one-year limitations period began

See Patterson v. Stewart, 251 F.3d

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25

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Since Petitioner does not allege the applicability of any
circumstances that would delay the running of the statute of
limitations (see 28 U.S.C. § 2244(d)(1)(B)-(D)), the Court will not
address those provisions.

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10

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1

The instant Petition, constructively filed on December 29,

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2020, was filed more than twenty-one years after the statute of

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limitations expired on December 2, 1999. Therefore, absent grounds

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for statutory or equitable tolling, the First Amended Petition is

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untimely.

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7

C.

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Petitioner Is Not Entitled To Statutory or Equitable
Equitable Tolling

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Petitioner is not entitled to statutory tolling during the

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pendency of his state habeas and other post-conviction petitions

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(see Lodgment No. 1 at 3, Nos. 4-16, No. 17 at 39-40, Nos. 18-25).8

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This is because a petition for state post-conviction or other

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collateral review filed after the conclusion of the limitations

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period cannot reinitiate the limitations period.

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Palmateer, 321 F.3d 820, 823 (9th Cir. 2003)(“[S]ection 2244(d)

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does not permit the reinitiation of the limitations period that has

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ended before the state petition was filed”); Jiminez v. Rice, 276

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F.3d 478, 482 (9th Cir. 2001)(filing of state habeas petition “well

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after the AEDPA statute of limitations ended” does not affect the

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limitations bar); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.

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2000)(“[A] state-court petition . . . that is filed following the

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expiration of the limitations period cannot toll that period

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because there is no period remaining to be tolled.”).

See Ferguson v.

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25
8

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In the Objection, Petitioner conclusorily asserts that he
is entitled to statutory tolling (see Objection at 1, 6), but he
does not provide any argument supporting his assertion.

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11

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The

United

States

Supreme

Court

has

recognized

the

2

availability of equitable tolling to the one-year statute of

3

limitations

4

involving “serious instances of attorney misconduct.” Holland, 560

5

U.S. at 649-52.

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equitable

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situations where extraordinary circumstances beyond a prisoner’s

8

control make it impossible to file a petition on time.

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345 F.3d at 799.

in

“extraordinary

circumstances,”

such

as

those

The Ninth Circuit recognizes the availability of

tolling

of

the

one-year

statute

of

limitations

in

Spitsyn,

The words “extraordinary” and “impossible”

10

suggest the limited availability of this doctrine and, to date, the

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Ninth Circuit has found very few circumstances which warrant

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equitable tolling.9 See Waldron-Ramsey v. Pacholke, 556 F.3d 1008,

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9

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See e.g., Grant v. Swarthout, 862 F.3d 914, 925-26 (9th
Cir. 2017)(equitable tolling warranted where prison officials
failed to provide petitioner with a requested prison account
certificate, a document the petitioner needed in order to file his
habeas petition); Luna v. Kernan, 784 F.3d 640, 646-49 (9th Cir.
2015)(equitable tolling warranted where petitioner’s counsel
voluntarily dismissed petitioner’s timely federal habeas petition
for no good reason, misled petitioner to believe that a fully
exhausted federal habeas petition would be filed “shortly” [without
informing petitioner that the statute of limitations was going to
run in three weeks]), and misled petitioner to believe - for more
than six years - that his federal habeas petition was moving
forward toward a hearing on the merits); Rudin v. Myles, 781 F.3d
1043, 1056-59 (9th Cir. 2015)(equitable tolling warranted where
petitioner’s first counsel abandoned petitioner by making minimal
visits to petitioner and then stopping the visits, blocking
petitioner’s phone calls, not showing an intention at postconviction hearings to actually represent petitioner, and failing
to provide petitioner with reasons for counsel’s delay; and where
the state affirmatively misled petitioner into believing that the
state court had excused petitioner’s late filing and that the
statute of limitations would be statutorily tolled); Gibbs v.
LeGrand, 767 F.3d 879, 886-88 (9th Cir. 2014)(equitable tolling
warranted where petitioner’s counsel abandoned petitioner by
failing to notify him of the state supreme court’s denial of his

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15
16
17
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19
20
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22
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25
26

1

1011 (9th Cir. 2009)(“To apply the doctrine in ‘extraordinary

2

circumstances’ necessarily suggests the doctrine’s rarity.”).

3

petitioner must establish that: (1) he has been pursuing his rights

4

diligently; and (2) some extraordinary circumstance caused the

5

delay.

6

determination.

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burden to prove equitable tolling.

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1018, 1019 (9th Cir. 2009).

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extraordinary circumstances were the cause of his untimeliness ...

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and that the ‘extraordinary circumstances ma[de] it impossible to

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file a petition on time.’” Ramirez v. Yates, 571 F.3d 993, 997 (9th

12

Cir. 2009)(citations omitted).

13

“external force” caused the untimeliness, rather than “oversight,

14

miscalculation or negligence.”

15

(citation omitted); see also Holland, 560 U.S. at 651-52.

Pace, 544 U.S. at 418.

A

This is a highly fact-dependent

Spitsyn, 345 F.3d at 799.

Petitioner bears the

See Zepeda v. Walker, 581 F.3d

Petitioner must show that “‘the

Petitioner must show that an

Waldron-Ramsey, 556 F.3d at 1011

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17

In the Objection, Petitioner contends that he is entitled to

18

equitable tolling based on the conduct of his attorney, Bernard J.

19
20

27

appeal of his state post-conviction petition until after the
expiration of the statute of limitations, despite petitioner’s
repeated inquiries); Doe v. Busby, 661 F.3d 1001, 1012-15 (9th Cir.
2011)(equitable tolling warranted where petitioner’s counsel failed
to file federal habeas petition after making numerous promises to
timely file, did not return petitioner’s file until long after the
statute of limitations had run, and petitioner was reasonably
diligent in pursuing his rights); and Bills v. Clark, 628 F.3d
1092, 1098-1101 (9th Cir. 2010)(equitable tolling may be warranted
where mental impairment so severe that petitioner was unable
personally either to understand the need to timely file or prepare
a habeas petition, and that impairment made it impossible under the
totality of the circumstances to meet the filing deadline despite
petitioner’s diligence).

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13

21
22
23
24
25
26

1

Rosen.

2

October 2, 1998, (the date on which the Los Angeles County Superior

3

Court

4

pursuing

5

Petitioner’s inquiry about filing an appeal, that he not have a

6

right to appeal based on his plea; (2) Petitioner was misled about

7

his ability to appear when, on November 12, 2019, (in response to

8

a letter from Petitioner dated November 7, 2019), his counsel wrote

9

Petitioner

Petitioner’s contention is based on the following: (1) on

sentenced
an

a

Petitioner),

appeal

letter

by

his

telling

stating

that

counsel

prevented

Petitioner,

he

was

not

in

him

response

able

to

from
to

assist

10

Petitioner by providing an affidavit “pertaining to [a] colloquy of

11

{petitioner’s] request for an appeal back in 1998[]”

12

counsel did not have any colloquy with Petitioner at any time

13

regarding a request for an appeal and there was no appeal “waiver”

14

in the signed plea agreement (Objection, Exhibit “C”); and (3)

15

after October 27, 1998, when Petitioner was extradited to Michigan,

16

(where he remained incarcerated until June 4, 2019), his counsel

17

“abandoned Petitioner by failing to notify him of any appeal

18

deadlines

or

19

inquiry.”

(See Objection at 1-4).

post-conviction

remedies,

despite

because

Petitioner’s

20
21

Here, Petitioner has not alleged any egregious or serious

22

acts by his attorney that would entitle him to equitable tolling.

23

See Holland, 560 U.S. at 652 (noting certain facts suggesting that

24

the petitioner’s counsel’s actions may have amounted to more than

25

simple negligence:

26

petition on time despite Holland’s many letters that repeatedly

27

emphasized the importance of him doing so.

28

“[Counsel] failed to file Holland’s federal

14

[Counsel] apparently

1

did not do the research necessary to find out the proper filing

2

date, despite Holland’s letters that went so far as to identify the

3

applicable legal rules.

4

timely manner about the crucial fact that the Florida Supreme Court

5

had decided his case, again despite Holland’s many pleas for that

6

information.

7

over a period of years, despite various pleas from Holland that

8

[counsel] respond to his letters.”); Gibbs v. LeGrand, 767 F.3d at

9

886, n.6 (counsel’s failure to notify the petitioner of the state

10

supreme court’s denial of his appeal of his state post-conviction

11

petition until after the expiration of the statute of limitations,

12

and failure to communicate with the petitioner “over a period of

13

years,” despite the petitioner’s repeated inquiries, was egregious

14

conduct amounting to abandonment, and therefore constituted an

15

“extraordinary circumstance”); Spitsyn, 345 F.3d at 800 (“We have

16

not applied equitable tolling in non-capital cases where attorney

17

negligence has caused the filing of a petition to be untimely.”);

18

Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)(“We conclude

19

that . . . [petitioner’s counsel’s] negligence in general do[es]

20

not constitute extraordinary circumstances sufficient to warrant

21

equitable tolling.”).

[Counsel] failed to inform Holland in a

And [counsel] failed to communicate with his client

22
23

While Petitioner admits he was able to contact his counsel in

24

2011

25

Petitioner fails to allege why he did not file belated appeal

26

pleadings and/or post-conviction pleadings at an earlier time.

27

Petitioner also fails to allege how his counsel’s likely conflict

28

and

obtain

his

file

materials,

15

(see

Objection

at

4),

1

with Petitioner’s present petition for resentencing (see Objection

2

at 4, Exhibit “E” [letter from Deputy Alternate Public Defender

3

Sara Forrest to Petitioner dated January 27, 2021]) affected

4

Petitioner’s ability to file a federal habeas petition.

5

put, Petitioner has failed to show extraordinary circumstances

6

beyond his control that made it impossible for him to file a timely

7

federal habeas petition. See Gaston v. Palmer, 417 F.3d 1030, 1034

8

(9th

9

petitioner failed to meet burden of showing a “causal connection”

10

between the petitioner’s self-representation and his inability to

11

file a timely federal habeas petition).

Cir.

2005)(equitable

tolling

not

available

Simply

where

the

12
13

Moreover, Petitioner’s unsubstantiated contention that he is

14

entitled to equitable tolling based on prison issues (i.e., the

15

Michigan “prison law library failed to provide California law

16

materials and forms and books,” and the Michigan prison law library

17

did not have computers until approximately 2010 or 2011, Objection

18

at 2), is unavailing.

19

showing how those circumstances made it impossible for Petitioner

20

to file a timely federal habeas petition. See id.; Pelaya v. Cate,

21

2011 WL 976771, *7 (C.D. Cal. Jan. 18, 2011)(“[E]quitable tolling

22

. . .

23

unspecified

24

documents, or an inability to physically access a law library, as

25

prisoners familiar with the routine restrictions of prison life

26

must take such matters into account when calculating when to file

27

a federal petition.”).

28

Petitioner has failed to meet his burden of

is not warranted because of the petitioner’s allegations of
lockdowns,

delays

in

16

obtaining

relevant

legal

1

Similarly, any possible claim for equitable tolling based on

2

Petitioner’s lack of understanding of the law also fails.

3

Waldron-Ramsey, 556 F.3d at 1013 n.4 (“[We] have held that a pro se

4

petitioner’s confusion or ignorance of the law is not, itself, a

5

circumstance warranting equitable tolling.”); Rasberry v. Garcia,

6

448 F.3d 1150, 1154 (9th Cir. 2006)(“[A] pro se petitioner’s lack

7

of

8

circumstance warranting equitable tolling.”).

legal

sophistication

is

not,

by

itself,

an

See

extraordinary

9
10

In an attempt to bypass the statute of limitations hurdle,

11

Petitioner

12

exception,” namely, when a trial court lacked jurisdiction over a

13

criminal case.

14

failed to cite, and the Court has been unable to locate, any

15

authority supporting such an exception for a state prisoner.

is

claiming

a

“fundamental

(See Opposition at 2-3).

constitutional

error

However, Petitioner has

16
17

Because Petitioner has failed to demonstrate that he is

18

entitled to statutory or equitable tolling or that he is actually

19

innocent,10 the Court must find the First Amended Petition to be

20
10

21
22
23
24
25
26
27
28

A petitioner may claim actual innocence in an attempt to
bypass the statute of limitations hurdle.
See McQuiggin v.
Perkins, 569 U.S. 383, 386 (2013)(“We hold that actual innocence,
if proved, serves as a gateway through which a petitioner may pass
whether the impediment is a procedural bar, as it was in Schlup and
House, or, as in this case, expiration of the statute of
limitations.”).
Under the actual innocence exception to the
statute of limitations, a petitioner must show that “‘in light of
the new evidence, no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt.’” Id. (quoting Schlup
v. Delo, 513 U.S. 298, 329 (1995)); see House v. Bell, 547 U.S.
518, 538 (2006)(“A petitioner’s burden at the gateway stage is to
(continued...)
17

1

untimely.

2
3

IV.

RECOMMENDATION

4
5

For the foregoing reasons, IT IS RECOMMENDED that the Court

6

issue an Order: (1) approving and accepting this Final Report and

7

Recommendation; (2) granting Respondent’s Motion to Dismiss the

8

First Amended Petition; (3) denying the First Amended Petition for

9

Writ of Habeas Corpus; and (4) directing that judgment be entered

10

dismissing this action with prejudice.

11
12

DATED:

April 28, 2021

13

/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26

10

(...continued)
demonstrate that more likely than not, in light of the new
evidence, no reasonable juror would find him guilty beyond a
reasonable doubt-or, to remove the double negative, that more
likely than not any reasonable juror would have reasonable
doubt.”). Here, Petitioner has not shown that the actual innocence
exception to the statute of limitations applies to this case. (See
Objection at 4-5). Moreover, Petitioner has not even purported to
make a showing of actual innocence, supported by new reliable
evidence. See Schlup, 513 U.S. at 324 (“To be credible, [a claim
of actual innocence] requires petitioner to 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.”).

27
28

18