Edware Dewayne Dorsey v. Christian Pheiffer

Filing 6

ORDER TO SHOW CAUSE RE: DISMISSAL OF PETITION by Magistrate Judge Patricia Donahue. Petitioner is admonished that if he does not file a response to this Order by June 30, 2023, the Court will recommend that the Petition be dismissed with prejudice as untimely. [See document for further information.] (es)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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EDWARD DEWAYNE DORSEY,

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Petitioner,

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v.

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Case No. 8:23-cv-00424-FLA-PD
ORDER TO SHOW CAUSE RE:
DISMISSAL OF PETITION

CHRISTIAN PHEIFFER,

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Respondent.

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On March 6, 2023, Petitioner Edward Dewayne Dorsey, proceeding pro
se, constructively filed a Petition for Writ of Habeas Corpus by a Person in
State Custody pursuant to 28 U.S.C. § 2254. 1

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The Petition was actually filed on March 9, 2023. Under the mailbox rule of
Houston v. Lack, 487 U.S. 266, 275-76 (1988), a prisoner constructively files
something on the day he gives it to prison authorities for forwarding to the relevant
court. See Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). Courts
presume that is the day the prisoner signs the document unless there is evidence to
the contrary. See Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (per
curiam) (as amended).
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The Court issues this Order to Show Cause directed to Petitioner
because the face of the Petition suggests that it is untimely.
I.

Procedural History and Petitioner’s Contentions
In May 2004, an Orange County Superior Court jury convicted

Petitioner of brandishing a firearm, possession of a firearm by a felon, and
street terrorism. [See Dkt. No. 1 at 2]; People v. Dorsey, No. G034957, 2006
WL 864546, at *1 (Cal. Ct. App. 2006) (“Dorsey I”). He was sentenced to 35
years to life in state prison. [See Dkt. No. 1 at 2.]
Petitioner appealed, and on April 5, 2006, the California Court of
Appeal affirmed the judgment. Dorsey I, 2006 WL 864546, at *5. The
California Supreme Court denied review on June 21, 2006. See Cal. App. Cts.
Case Info. http://appellatecases.courtinfo.ca.gov/ (search for “Dorsey,”
“Edward,” and “Dewayne”) (last visited on May 18, 2023).
Nearly two years later, on April 14, 2008, Petitioner filed a habeas
petition in the court of appeal, which denied it on May 8. See id. On June 30,
2008, he filed a habeas petition in the California Supreme Court, which
denied the petition on November 19. See id.
In July 2014, Petitioner filed a habeas petition in the superior court,

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which granted relief and vacated one of his convictions and one of his

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sentencing enhancements, on July 11. [See Dkt. No. 1 at 7]; People v. Dorsey,

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No. G051134, 2015 WL 6690234, at *1 (Cal. Ct. App. Nov. 3, 2015) (“Dorsey

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II”). He was resentenced to 30 years to life in state prison. Dorsey II, 2015

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WL 6690234, at *1. He did not appeal. See Cal. App. Cts. Case Info.

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http://appellatecases.courtinfo.ca.gov/ (search for “Dorsey,” “Edward,” and

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“Dewayne”) (last visited on May 18, 2023).

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Petitioner did not sign the Petition, but dated the envelope in which it was sent
March 6, 2023. [See Dkt. No. 1 at 141.] The Court thus uses that date as the
Petition’s constructive filing date. See Butler, 752 F.3d at 1178 n.1.

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In August 2014, Petitioner filed a petition to recall his sentence in

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superior court, which denied it on December 12. [See Dkt. No. 1 at 8]; Dorsey

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II, 2015 WL 6690234, at *1. He appealed, and on November 3, 2015, the court

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of appeal affirmed. See Dorsey II, 2015 WL 6690234, at *1. On December 16,

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2015, he filed a petition for review in the California Supreme Court, which

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denied it on January 20, 2016. See Cal. App. Cts. Case Info. http://

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appellatecases.courtinfo.ca.gov/ (search for “Dorsey,” “Edward,” and

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“Dewayne”) (last visited May 18, 2023).
According to Petitioner, he filed another habeas petition sometime in

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2017 in superior court, which denied it on August 21. [See Dkt. No. 1 at 9.] In

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November 2020, he filed a request for a hearing under People v. Franklin, 63

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Cal. 4th 261 (2016), which the superior court denied. 2 See People v. Dorsey,

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G059841, 2021 WL 5917997 (Cal. Ct. App. Dec. 15, 2021) (“Dorsey III”). He

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appealed, and on December 15, 2021, the court of appeal affirmed. See id. at
*2. He sought review in the California Supreme Court, which denied review
on March 9, 2022. See Cal. App. Cts. Case Info. http://appellatecases.
courtinfo.ca.gov/ (search for “Dorsey,” “Edward,” and “Dewayne”) (last
visited May 18, 2023).
Meanwhile, on January 13, 2022, Petitioner filed a habeas petition in
the court of appeal, which denied it on January 27. See id. On February 7,
2022, he filed another habeas petition in the California Supreme Court, which
denied it on March 16. See id.
He constructively filed the instant Petition on March 6, 2023. [See Dkt.
No. 1 at 141.] Liberally construed, see Woods v. Carey, 525 F.3d 886, 889-90
In Franklin, the California Supreme Court held that a defendant who will be
eligible for a youth offender parole hearing at some point in the future must be
“afforded sufficient opportunity to make a record of information relevant to his
eventual youth offender parole hearing.” 63 Cal. 4th at p. 284.
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(9th Cir. 2008) (district courts are obligated to liberally construe pro se

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litigant filings), the Petition states the following five grounds for relief:

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(1) Petitioner is actually innocent of the crimes of which he was
convicted;
(2) trial counsel provided ineffective assistance by committing the

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following errors:
a.

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failing to investigate two witnesses, one of whom would have

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provided an alibi for Petitioner, and the other of whom would have testified

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that he was the person who committed the crimes; 3

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b.

failing to convey to Petitioner a favorable plea offer;

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failing to object to evidence obtained from Petitioner during an

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illegal search and seizure; and
d.

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failing to object to the delay of Petitioner’s preliminary hearing

and protect his rights under the Speedy Trial Act;
(3) appellate counsel provided ineffective assistance by failing to assert
an illegal-search-and-seizure claim on appeal and by neglecting to inform
Petitioner of the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”)
one-year statute of limitations to file a federal habeas petition;
(4) post-conviction counsel provided ineffective assistance by failing to
advise Petitioner to assert his actual-innocence and ineffective-assistance
claims in state court and by failing to advise him of AEDPA’s one-year
limitations period; and
(5) the restriction on Petitioner’s “liberty is illegal and contravenes his
Eighth Amendment right against ‘cruel and unusual punishment.’”
[Dkt. No. 1 at 17-25, 32-48.]

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Petitioner also faults trial counsel for failing to investigate and call as witnesses
unidentified “neighbors” who would have supported his defense. [Dkt. No. 1 at 20.]
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II.

Discussion
Rule 4 of the Rules Governing § 2254 Cases requires the Court to

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conduct a preliminary review of the Petition. Pursuant to Rule 4, the Court

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must summarily dismiss a petition “[i]f it plainly appears from the face of the

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petition . . . that the petitioner is not entitled to relief in the district court.”

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Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908

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F.2d 490 (9th Cir. 1990). As explained below, a review of the Petition shows

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that it is subject to dismissal as untimely, and Petitioner therefore must show

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cause as to why it should not be dismissed.

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A.

The Petition is Untimely on Its Face
1.

The Limitations Period

The AEDPA imposes a one-year period of limitation for state prisoners

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to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The

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one-year limitations period runs from the latest of the four following dates:

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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

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(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)(A)-(D). The Ninth Circuit has held that “the

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judgment from which the AEDPA statute of limitations runs is the one

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pursuant to which the petitioner is incarcerated.” Smith v. Williams, 871

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F.3d 684, 687 (9th Cir. 2017).

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Here, the California Supreme Court denied Petitioner’s original petition

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for review on June 21, 2006. See Cal. App. Cts. Case Info. http://

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appellatecases.courtinfo.ca.gov/ (search for Case No. S143404) (last visited

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May 18, 2023). He did not seek a writ of certiorari in the U.S. Supreme Court.

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See U.S. Sup. Ct. Docket Search, https://www.supremecourt.gov/docket/

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docket.aspx (search for “Dorsey” with “Edward” yielding no relevant results)

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(last visited May 18, 2023).
On July 11, 2014, Petitioner obtained habeas relief in superior court

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and was resentenced. [See Dkt. No. 1 at 7]; Dorsey II, 2015 WL 6690234, at

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*1. He did not appeal, see Cal. App. Cts. Case Info.

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http://appellatecases.courtinfo.ca.gov/ (search for “Dorsey,” “Edward,” and

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“Dewayne”) (last visited May 18, 2023), and thus his conviction became final

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60 days later, on September 9, 2014. See Cal. R. Ct. 8.308(a) (notice of appeal

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must be filed within 60 days of judgment); Caspari v. Bohlen, 510 U.S. 383,
390 (1994) (state conviction and sentence become final when availability of
direct appeal has been exhausted and time for filing petition for writ of
certiorari has elapsed or timely filed petition has been denied); see also
Marquez v. McDaniel, 729 F. App’x 583, 584 (9th Cir. 2018) (“Where an
amended or corrected judgment is entered, a prisoner is held under that
amended or corrected judgment[,]” and “the one-year [statute of limitations]
period runs from the date of the amended judgment.”) (citing Smith v.
Williams, 871 F.3d 684, 688 (9th Cir. 2017)). 4 Accordingly, the one-year
limitation period for seeking federal habeas relief ended a year later, on
September 9, 2015. See § 2244(d).

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Petitioner could not have filed a petition for writ of certiorari concerning his new
sentence in the U.S. Supreme Court because he did not appeal to the highest state
court. See 28 U.S.C. § 1257(a); Sup. Ct. R. 13(1).

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Petitioner constructively filed the instant Petition over seven years after

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that deadline, on March 6, 2023. [See Dkt. No. 1 at 141.] He does not contend

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that he is entitled to a later trigger date of the limitation period under

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§ 2244(d)(1)(B) or (C), and no such basis is apparent to the Court. 5 To the

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contrary, based on his allegations, Petitioner was aware of all of his current

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claims years before his conviction became final. [See Dkt. No. 1 at 121-24.]

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Consequently, the present action is untimely unless he is entitled to statutory

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or equitable tolling of the limitation period.
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Statutory Tolling

The one-year limitation period is “statutorily tolled” while a “properly

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filed application for State post-conviction or other collateral review with

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respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).

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The statute is not tolled between the time a final decision is issued on direct

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review and the time the first state collateral challenge is filed, because there

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is no case “pending” during that time. See Nino v. Galaza, 183 F.3d 1003,

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1006 (9th Cir. 1999). However, the statute is tolled for the time during which

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a state prisoner is attempting, through proper use of state court procedures,

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to exhaust state court remedies regarding a particular post-conviction

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application. Once an application for post-conviction review commences, it is

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“pending” until a petitioner “complete[s] a full round of [state] collateral
review.” Delhomme v. Ramirez, 340 F.3d 817, 819 (9th Cir. 2003) (citing
Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003)).
Here, Petitioner is not entitled to any statutory tolling. In August 2014,
he filed a petition to recall his sentence in superior court, which denied it on
December 12, [see Dkt. No. 1 at 8], an unsuccessful appeal of that denial,
Dorsey II, 2015 WL 6690234, at *1, and a petition for review, which was
Petitioner arguably alleges that he is entitled to a later start date of the limitation
period under § 2244(d)(1)(D). [See Dkt. No. 1 at 14.] That allegation is addressed
below.
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denied on December 16, 2015 [see Dkt. No. 1 at 8]. See Cal. App. Cts. Case

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Info. http://appellatecases.courtinfo.ca.gov/ (search for “Dorsey,” “Edward,”

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and “Dewayne”) (last visited May 18, 2023). But a state-court petition for

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recall is not a post-conviction collateral attack on a state-court judgment

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because it does not challenge the underlying conviction or sentence;

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consequently, it does not toll the limitations period unless it results in a new

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judgment. 6 See Johnson v. Neuschmid, No. CV 19-8119-ODW (SP), 2020 WL

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6219330, at *4 (C.D. Cal. Sept. 1, 2020) (petition for resentencing under Cal.

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Penal Code § 1170.18 did not attack state-court judgment and thus did not

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toll limitation period), accepted by 2020 WL 6203569 (C.D. Cal. Oct. 22, 2020).

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Moreover, neither the 2017 habeas petition that Petitioner filed in

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superior court [see Dkt. No. 1 at 9] nor the request for hearing under Franklin

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that he filed in November 2020 (and his subsequent appeals concerning the

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denial of that request) tolled the limitation period because it had already

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expired when he filed them. See Ferguson v. Palmateer, 321 F.3d 820, 823
(9th Cir. 2003) (“[S]ection 2244(d) does not permit the reinitiation of a
limitations period that has ended before the state petition was filed.”); Green
v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (state habeas petition filed after
expiration of AEDPA limitation period could not toll limitation period
“because the limitations period had already run”). The same is true
concerning the habeas petitions he filed in the court of appeal and the
California Supreme Court in 2022. See Cal. App. Cts. Case Info. http://
appellatecases.courtinfo.ca.gov/ (search for “Dorsey,” “Edward,” and

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In any event, even if Petitioner’s petition for recall and the subsequent appeals
concerning the denial of that petition tolled the limitation period, the Petition would
nevertheless be untimely because, at a minimum, he filed no petitions of any kind in
state court between August 21, 2017, when his second habeas petition in superior
court was denied [see Dkt. No. 1 at 9], and November 2020, when he filed a request
for a hearing under Franklin [see id. at 9, 121-31]. See Dorsey III, 2021 WL
5917997, at *1.
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“Dewayne”) (last visited on May 18, 2023).
3.

Equitable Tolling

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Petitioner alleges several arguments that, in his view, warrant

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equitable tolling of the one-year limitation period. First, he argues that he

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lacked the requisite legal training and knowledge to identify and prosecute

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the Petition’s claims and was able to do so only after retained counsel alerted

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him to them in June 2020. [See Dkt. No. 1 at 14, 25-26.] Second, he

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maintains that neither his appellate counsel nor his post-conviction counsel

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appointed to assist him in his state-court petition to recall his sentence

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notified him of the AEDPA one-year limitation period. [See id. at 24-25, 28,

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46-47.] What’s more, according to Petitioner, neither of his appointed

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counsels identified any of the “meritorious” claims that he has asserted in the

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Petition, and thus he had no way to discover them until retained counsel did

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in June 2020. [Id. at 14, 25-26.]

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The one-year limitations period is subject to equitable tolling in

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appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010). “[T]he

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threshold necessary to trigger equitable tolling is very high, lest the

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exceptions swallow the rule.” Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir.

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2006) (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). To

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qualify, a petitioner has the burden to demonstrate (1) that he has been
pursuing his rights diligently, and (2) that an “extraordinary circumstance”
stood in his way that prevented him from timely filing. Holland, 560 U.S. at
649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
To show “extraordinary circumstances,” a petitioner must show that
“the circumstances that caused his delay are both extraordinary and beyond
his control” – a high threshold. Menominee Indian Tribe of Wisconsin v.
United States, 577 U.S. 250, 255 (2016). In addition, a petitioner must show
that the extraordinary circumstances caused the untimely filing of his habeas

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petition. See Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citing

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Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)); see also Smith v. Davis,

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953 F.3d 582, 595 (9th Cir. 2020) (“Whether an impediment caused by

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extraordinary circumstances prevented timely filing is a ‘causation

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question.’”).

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To demonstrate that he has been pursuing his rights diligently, a

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petitioner must show that he has “been reasonably diligent in pursuing his

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rights not only while an impediment to filing caused by an extraordinary

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circumstance existed, but before and after as well, up to the time of filing his

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claim in federal court.” Smith, 953 F.3d at 598-99. In other words, “when

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[the petitioner] is free from the extraordinary circumstance, he must also be

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diligent in actively pursuing his rights.” Id. at 599. Because Petitioner must

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show diligence before, during, and after extraordinary circumstances

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prevented him from filing, see Smith, 953 F.3d at 598-99, he must show

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diligence during the period from September 9, 2014, the day the statute of
limitations began to run, to until March 6, 2023, the day he constructively
filed the Petition.
Here, none of Petitioner’s allegations warrants equitable tolling of the

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limitation period. First, that Petitioner lacked training is not sufficient to toll

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the limitation period. The Ninth Circuit has squarely held that “a pro se

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petitioner’s lack of legal sophistication is not, by itself, an extraordinary

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circumstance warranting equitable tolling.” Rasberry v. Garcia, 448 F.3d

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1150, 1154 (9th Cir. 2006); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013

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n.4 (9th Cir. 2009) (“[W]e have held that a pro se petitioner’s confusion or

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ignorance of the law is not, itself, a circumstance warranting equitable

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tolling[.]”) (citation omitted). Petitioner was aware of the facts underlying

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each of the Petition’s claims no later than August 5, 2005, when appellate

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counsel filed Petitioner’s opening brief on appeal. [See Dkt. No. 1 at 121-24];

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See Cal. App. Cts. Case Info. http://appellatecases.courtinfo.ca.gov/ (search for

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“Dorsey,” “Edward,” and “Dewayne”) (last visited May 18, 2023). Accordingly,

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he could have timely asserted those claims in federal court had he exercised

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reasonable diligence. His failure to do so is not an extraordinary

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circumstance.

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Second, that neither of Petitioner’s state-court appointed counsels

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notified him of the AEDPA one-year limitation period is likewise insufficient

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to toll the limitations period. See Garcia v. Perez, No. SACV 15-0397-JPR,

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2016 WL 1028002, at *9 (C.D. Cal. Mar. 14, 2016) (“Even if Petitioner’s

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untimely filing of his federal Petition is attributable in part to his ignorance of

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the federal habeas statute and the California postconviction process, ‘a pro se

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petitioner’s lack of legal sophistication is not, by itself, an extraordinary

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circumstance warranting equitable tolling.’” (quoting Rasberry, 448 F.3d at

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1154)); Mezquita v. Soto, No. CV 14-5994-VAP (RNB), 2014 WL 4988145, at

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*2, *4-5 (C.D. Cal. Sept. 4, 2014) (equitable tolling not warranted when
appellate counsel did not provide petitioner notice of AEDPA’s limitation
period even though petitioner had slightly-below fifth-grade reading level),
accepted by 2014 WL 5017919 (C.D. Cal. Oct. 7, 2014).
In short, none of Petitioner’s allegations in the Petition warrant
equitable tolling.
4.

Later Start Date under § 2244(d)(1)(D)

Under § 2244(d)(1)(D), the limitations period begins to run from “the
date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence,” not when it was
actually discovered. 28 U.S.C. § 2244(d)(1)(D). “Time begins when the
prisoner knows (or through diligence could discover) the important facts, not
when the prisoner recognizes their legal significance.” Hasan v. Galaza, 254
F.3d 1150, 1154 n.3 (9th Cir. 2001). “Due diligence does not require the

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maximum feasible diligence, but it does require reasonable diligence in the

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circumstances.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012)

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(internal citation and quotation marks omitted).

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Section 2244(d)(1)(D) provides a petitioner with a later accrual date

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than section 2244(d)(1)(A) only “‘if vital facts could not have been known’ by

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the date the appellate process ended.” Id. (citations omitted). Accordingly,

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“[t]he ‘due diligence’ clock starts ticking when a person knows or through

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diligence could discover the vital facts, regardless of when their legal

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significance is actually discovered.” Id. The Ninth Circuit has explained that

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“section 2244(d)(1)(D)’s due diligence requirement is an objective standard. . .

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.” Id. Nevertheless, in determining whether a petitioner has exercised due

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diligence, courts also consider the petitioner’s “particular circumstances.” Id.

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Courts, therefore, may consider any impediments that the petitioner faced in

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discovering a claim’s factual predicate. Id. Correspondingly, courts also may

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consider “unique resources at the petitioner’s disposal to discover his or her
claim.” Id.
Here, Petitioner is not entitled to a later start date of the AEDPA oneyear limitation period. As related above, he was necessarily aware of all the
facts underlying the Petition’s claims no later than August 5, 2005, when
appellate counsel filed Petitioner’s opening brief on appeal. [See Dkt. No. 1 at
121-24]; See Cal. App. Cts. Case Info. http://appellatecases.courtinfo. ca.gov/
(search for “Dorsey,” “Edward,” and “Dewayne”) (last visited May 18, 2023).
That he may not have appreciated the legal significance of those facts is
insufficient to trigger an alternative start date of the limitations period. See
Hasan, 254 F.3d at 1154 n.3. What’s more, Petitioner evidently had resources
available to him that many prisoners do not. Indeed, in June 2020, he
retained counsel [see Dkt, No. 1 at 14], and he cites no reason why he could
not have done so before then. And even if he could, he did not require counsel

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to timely assert any of the Petition’s claims.
5.

Actual Innocence

Petitioner contends that the AEDPA one-year statute of limitations does

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not bar the Petition because he is actually innocent of the crimes of which he

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was convicted. [See Dkt. No. 1 at 17-18, 27.] In support of this contention, he

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presents declarations from two people, one of whom would have provided an

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alibi for Petitioner, and the other of whom would have testified that he was

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the person who committed the crimes of which Petitioner was convicted. [See

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Dkt. No. 1 at 126-31.] The first declaration is from Kisha Woodburn,

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Petitioner’s ex-girlfriend. [See id. at 30, 129-31.] Woodburn declares that

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Petitioner could not have committed the crimes underlying his convictions

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because he was with her in her apartment when the crimes occurred. [See id.

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at 130-31.] The second declaration is from Donell English, Petitioner’s cousin.

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[See id. at 15, 126-28.] English declares that he – not Petitioner – was the

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person who brandished a firearm at the victim. [See id. at 126-27.] Both

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declarants state that they were willing to testify at Petitioner’s trial, but trial

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counsel never contacted them. [See id. at 127, 131.] Citing these two

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declarations, Petitioner posits that the victim necessarily “misidentified” him.

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[Dkt. No. 1 at 17.] As explained below, Petitioner’s new evidence is not

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sufficient to render the Petition timely under the fundamental-miscarriage-ofjustice exception to the AEDPA one-year limitation period.
Under the “fundamental miscarriage of justice” exception to the
AEDPA limitation period, a habeas petitioner may pursue constitutional
claims on the merits “notwithstanding the existence of a procedural bar to
relief.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). The exception is
limited to claims of actual innocence, however, and a petitioner does not
qualify if he asserts “only procedural violations.” Johnson v. Knowles, 541
F.3d 933, 937 (9th Cir. 2008); see Schlup v. Delo, 513 U.S. 298, 321 (1995)

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(observing that Supreme Court precedent has “explicitly tied the miscarriage

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of justice exception to the petitioner’s innocence”); Herrera v. Collins, 506 U.S.

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390, 404 (1993) (“This . . . fundamental miscarriage of justice exception [ ] is

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grounded in the ‘equitable discretion’ of habeas courts to see that federal

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constitutional errors do not result in the incarceration of innocent persons.”

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(quoting McCleskey v. Zant, 499 U.S. 467, 502 (1991))).

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“[A]ctual innocence, if proved, serves as a gateway through which a

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petitioner may pass whether the impediment is a procedural bar . . . or . . .

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expiration of the statute of limitations.” Perkins, 569 U.S. at 386; see also Lee

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v. Lampert, 653 F.3d 929, 934–37 (9th Cir. 2011) (en banc). The Schlup

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standard is “demanding.” Perkins, 569 U.S. at 386 (citation omitted). “[A]

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petitioner ‘must show that it is more likely than not that no reasonable juror

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would have convicted him in the light of the new evidence.’” Id. at 399

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(quoting Schlup, 513 U.S. at 327); see also Bousley v. United States, 523 U.S.

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614, 623 (1998) (noting in context of collateral review of federal criminal
conviction that actual innocence “means factual innocence, not mere legal
insufficiency”). To overcome the statute of limitations, the evidence of actual
innocence must be “so strong that a court cannot have confidence in the
outcome of the trial unless the court is also satisfied that the trial was free of
nonharmless constitutional error.” Schlup, 513 U.S. at 316. The “timing of
the petition” asserting actual innocence is a factor relevant to how strong a
showing is needed. Perkins, 569 U.S. at 386. The longer a petitioner has
delayed, the greater the showing of innocence must be. See id. at 399-400
(petitioner’s “untoward delay” in arguing his actual innocence “should
seriously undermine [the argument’s] credibility”).
“New” evidence is “relevant evidence that was either excluded or
unavailable at trial.” Schlup, 513 U.S. at 324, 327-28. This evidence must be
“reliable.” Id. at 324. Evidence that is only newly presented – but not

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necessarily newly discovered – may nonetheless suffice to overcome AEDPA’s

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limitation period. Griffin v. Johnson, 350 F.3d 956, 962-63 (9th Cir. 2003)

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(allowing otherwise time-barred claim to proceed based on evidence of actual

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innocence available, but not introduced, at time of trial). But see Chestang v.

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Sisto, 522 F. App’x 389, 391 (9th Cir. 2013) (newly acquired witness

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declaration not sufficiently “new” to support actual innocence because

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contents were within defendant’s knowledge at time of trial and no

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explanation was given for not introducing it sooner).

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While the Schlup standard does not require absolute certainty

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regarding the petitioner’s guilt or innocence, it nevertheless is an “exacting

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standard” that permits review “only in the ‘extraordinary’ case.” Lee, 653

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F.3d at 937. Indeed, the Supreme Court has noted that this exception is

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“rare.” Schlup, 513 U.S. at 321.

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Here, Petitioner cannot meet Schlup’s exacting standard. First, both
Woodburn and English have readily apparent credibility problems. Neither of
them is a disinterested witness: Woodburn is Petitioner’s ex-girlfriend, and
English is his cousin. See House v. Bell, 547 U.S. 518, 552 (2006) (eyewitness
testimony given by disinterested witness with no motive to lie “has more
probative value” than “testimony from inmates, suspects, or friends or
relations of the accused”); see also Romero v. Tansy, 46 F.3d 1024, 1030 (10th
Cir. 1995) (testimony by defendant’s family members is of “significantly less
exculpatory value than the testimony of an objective witness”). Putting that
aside, Woodburn evidently lied to police who were investigating the
underlying crimes. Specifically, when police arrived at her apartment to
investigate the victim’s complaint, she told them that Petitioner was not home
when in fact he was hiding in her bathroom shower. See Dorsey I, 2006 WL
864546, at *1.

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English has even more credibility problems. Although his April 2021

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declaration states that he was the person who brandished the weapon at the

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victim, he did not sign his declaration until over 15 years after the crimes

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were committed. [Compare Dkt. No. 1 at 2 (stating that Petitioner was

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convicted on May 20, 2004), with id. at 128 (reflecting that English signed his

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declaration in April 2021).] By that time, the statute of limitations on the

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crimes – both brandishing a firearm and felon in possession of a firearm – had

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long since passed. See Cal. Penal Code §§ 801 (limitation period for offenses

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punishable by imprisonment is generally three years), 800 (limitation period

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for offenses punishable by imprisonment of eight years or more is six years). 7

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Accordingly, English had little if anything to lose in confessing to those crimes

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in 2021, and thus his confession is inherently suspect. See Williams v. Soto,

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No. CV 15-1275-MWF (FFM), 2018 WL 2208041, at *23 (C.D. Cal. Feb. 20,

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2018) (witness’s confession that he committed crime for which petitioner was

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convicted was inherently suspect because witness did not confess until after
limitation period to prosecute him had passed), accepted by 2018 WL 2215977
(C.D. Cal. May 10, 2018), denying cert. of appealability, No. 18-55634, 2018
WL 6041663 (9th Cir. Sept. 25, 2018); see also Smith v. Baldwin, 510 F.3d
1127, 1142 n.11 (9th Cir. 2007 (en banc) (partner-in-crime’s confession that he
committed murder of which petitioner was convicted would be unconvincing to
jury because jury likely would conclude that partner-in-crime, who was
serving life sentence on unrelated crime, was hoping to help petitioner
without any personal consequences); Morris v. Hill, 596 F. App’x 590, 591 (9th
Cir. 2015) (rejecting actual innocence claim based proposed witness’s
confession to crime because witness was serving three life sentences, one of
which without possibility of parole, and thus had “nothing to lose by
There is no statute of limitations in California for offenses punishable by life in
prison. See Cal. Penal Code § 799. None of the crimes of which Petitioner was
convicted, however, are punishable by life in prison.
7

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confessing”). And although English claims that he wanted to confess all along

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and was willing to do so at Petitioner’s trial [see Dkt No. 1 at 126-28], he opted

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not to confess when he and Petitioner were arrested or at any time before

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being sent to jail on an unrelated crime even though he must have known

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Petitioner had been charged with the crime or at least was a suspect. That

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fact, coupled with his having nothing to lose in confessing, render his

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declaration of little persuasive value in showing Petitioner’s innocence.
Second, Petitioner’s unexplained delay in raising any kind of actual-

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innocence argument undermines it validity. If he were innocent of the

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charged crimes, he knew that fact since the moment he was arrested, as well

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as that Woodburn could have provided him an alibi. What’s more, he

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contends that “[l]ong before the start of [his] trial” in 2004, he knew that

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English was willing to confess to the crimes. [Dkt. No. 1 at 122.]

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Notwithstanding those purported facts, he waited until over 16 years after he

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was convicted to assert his actual-innocence claim. 8 [See id. at 14.] That
prolonged delay “seriously undermine[s]” the credibility of Petitioner’s
protestations of innocence. Perkins, 569 U.S. at 386.
Finally, the after-the-fact declarations of Woodburn and English are
insufficient to show that no reasonable juror would have convicted Petitioner
because of the substantial evidence implicating only Petitioner in the charged
crimes. Putting aside Woodburn’s and English’s credibility problems
identified above, there was ample evidence of Petitioner’s guilt. Indeed, the
victim positively identified him as the person who brandished the firearm.
Petitioner does not cite any state habeas petition in which he asserted his actualinnocence claim. But based on his allegations, he necessarily did not do so until
sometime after June 2020. [See Dkt. No. 1 at 14.] As best as the Court can tell, he
first raised the claim in the habeas petition he filed in the court of appeal on
January 13, 2022. See Cal. App. Cts. Case Info. http://appellatecases.courtinfo.
ca.gov/ (search for “Dorsey,” “Edward,” and “Dewayne”) (last visited May 18, 2023).
But the Court cannot definitively state that he raised his actual-innocence claim in
that state-court petition because Petitioner did not attach it to the instant Petition.

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Dorsey I, 2006 WL 864546, at *1. And when police came to arrest Petitioner,

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he evidenced a consciousness of guilt by hiding in Woodburn’s shower, while

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she told police that he was not in the apartment. See id.; see also People v. Vu,

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143 Cal. App. 4th 1009, 1030 (2006) (evidence that defendant tried to hide

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after crime is relevant to show consciousness of guilt); People v. Dabb, 32 Cal.

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2d 491, 500 (1948) (“[A] consciousness of guilt may be inferred from an

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attempt to avoid apprehension.”). Moreover, once inside Woodburn’s

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apartment, he changed out of the clothes he had been wearing only moments

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before when he had confronted the victim. Dorsey I, 2006 WL 864546, at *1.

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And more importantly, his fingerprints were found on a gun that was hidden

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in a clothes hamper in Woodburn’s apartment. Id.

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Put simply, there was substantial evidence of Petitioner’s guilt, and the

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after-the-fact declarations of two interested witnesses with obvious credibility

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problems is not sufficient to show a likelihood that no reasonable juror would

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have convicted Petitioner even after considering them. As such, he cannot
show that a fundamental miscarriage of justice would result if the Court were
not to consider the merits of the Petition’s claims.
In sum, Petitioner has failed to file a federal habeas petition within one
year of the date on which the AEDPA’s one-year limitation period began to
run. He is not entitled to any statutory tolling (or if he is, it is not sufficient
to render the Petition timely), he has not alleged sufficient facts to warrant
equitable tolling or a later start date of the limitation period. Nor has he
shown that failing to consider the Petition’s claims would result in a
fundamental miscarriage of justice. Thus, the Petition is untimely. 9
Petitioner also alleges that he has previously filed a habeas petition in this Court
that was denied as untimely. [See Dkt. No. 1 at 7.] He fails, however, to provide a
case number for that petition or the date on which it was denied. [See id.] The
Court moreover has been unable to verify that such a petition was ever filed. To the
extent he filed the petition after obtaining habeas relief in the superior court [see
id.], the instant Petition would be an unauthorized second or successive petition
9

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III.

Conclusion
For the foregoing reasons, the Court ORDERS Petitioner to

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show cause by no later than June 30, 2023, as to why the Petition should

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not be dismissed as untimely.

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If he contends that he is entitled to tolling of any kind or a later start

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date of the limitation period for any reason other than those identified in the

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Petition, he must allege specific facts to support those contentions and provide

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any reasonably available supporting documentation. If he continues to

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maintain that he is actually innocent, he likewise must allege specific facts in

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addition to those alleged in the Petition to support that contention and

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provide any reasonably available supporting documentation.

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Petitioner is admonished that if he does not file a response to this Order

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by June 30, 2023, the Court will recommend that the Petition be dismissed

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with prejudice as untimely.

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IT IS SO ORDERED.

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DATED: May 22, 2023
PATRICIA DONAHUE
UNITED STATES MAGISTRATE JUDGE

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because he does not allege that he obtained permission from the Ninth Circuit Court
of Appeals before filing it. See § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 157
(2007) (holding district court lacks jurisdiction to consider merits of second or
successive petition absent prior authorization from circuit court). The Court,
however, lacks sufficient information at this time to determine if the Petition is in
fact second or successive of any prior federal habeas petition.

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