Hernandez v. Biter

Filing 25

FINDINGS And RECOMMENDATIONS To Disregard Petitioner's Motion To Vacate Except As A Sur-Reply To Respondent's Motion To Dismiss (Doc. 18 ), Findings And Recommendations Re: Respondent's Motion To Dismiss The Petition (Doc. 15 , 1 ), Findings And Recommendations To Grant Respondent's Motion To Dismiss The Petition (Doc. 15 ), Dismiss The Petition As Untimely Filed (Doc. 1 ), Enter Judgment For Respondent, And Decline To Issue A Certificate Of Appealability, signed by Magistrate Judge Sheila K. Oberto on 1/9/2013. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 2/11/2013.(Fahrney, E)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RICHARD HERNANDEZ,

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Petitioner,

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v.
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WARDEN M. D. BITER,
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Respondent.
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1:12-cv—00125-AWI-SKO-HC
FINDINGS AND RECOMMENDATION TO
DISREGARD PETITIONER’S MOTION TO
VACATE EXCEPT AS A SUR-REPLY TO
RESPONDENT’S MOTION TO DISMISS
(DOC. 18)
FINDINGS AND RECOMMENDATIONS RE:
RESPONDENT’S MOTION TO DISMISS
THE PETITION (DOCS. 15, 1)
FINDINGS AND RECOMMENDATIONS TO
GRANT RESPONDENT’S MOTION TO
DISMISS THE PETITION (DOC. 15),
DISMISS THE PETITION AS UNTIMELY
FILED (DOC. 1), ENTER JUDGMENT
FOR RESPONDENT, AND DECLINE TO
ISSUE A CERTIFICATE OF
APPEALABILITY

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Petitioner is a state prisoner proceeding pro se and in

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forma pauperis with a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254 that was filed on January 27, 2012 (doc. 1).

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The matter has been referred to the Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.

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before the Court is Respondent’s motion to dismiss the petition

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as untimely, which was filed on August 3, 2012, along with
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Pending

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supporting documentary exhibits, and served by mail on Petitioner

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on the same date.

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opposition and served it on Respondent by mail.

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On September 14, 2012, Respondent filed a reply and served it on

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Petitioner by mail. (Doc. 19, 5.)

On August 24, 2012, Petitioner filed an
(Doc. 17, 7.)1

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I.

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Petitioner filed a motion to vacate a void judgment on

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August 24, 2012, at the same time that he filed his opposition to

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Respondent’s motion to dismiss.

Disregarding Petitioner’s Motion to Vacate

In the motion, Petitioner asked

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for an order to vacate an unidentified, void judgment pursuant to

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Fed. R. Civ. P. 60(b)(4); to deny the motion to dismiss; and to

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dismiss Respondent’s answer because it did not dispute violations

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of constitutionally protected laws, which Petitioner contends

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causes Petitioner to be entitled to relief on the merits of his

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petition.

(Doc. 18.)

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In support of the motion to vacate, Petitioner declared

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under penalty of perjury that he had witnessed unspecified agents

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of the prosecutor, police, and defense counsel for Petitioner and

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his co-defendant “knowingly coerce” his co-defendant with a bribe

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of a plea deal to offer perjured testimony against Petitioner to

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1

Under the mailbox rule, a prisoner's pro se habeas petition or other
paper to be filed is "deemed filed when he hands it over to prison authorities
for mailing to the relevant court." Huizar v. Carey, 273 F.3d 1220, 1222 (9th
Cir. 2001); Houston v. Lack, 487 U.S. 266, 276 (1988); see, Rule 3(d) of the
Rules Governing Section 2254 Cases in the United States District Courts
(Habeas Rules). The mailbox rule applies to federal and state petitions
alike. Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citing
Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003), and Smith v.
Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003)). It has been held that the
date the petition is signed may be inferred to be the earliest possible date
an inmate could submit his petition to prison authorities for filing under the
mailbox rule. Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003),
overruled on other grounds, Pace v. DiGuglielmo, 544 U.S. 408 (2005). Here,
the date of signature will be considered to be the date of filing.

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secure the tainted conviction and sentence challenged in

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Petitioner’s petition.

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“the vehicle related to this case” was deliberately and knowingly

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destroyed pursuant to the order of detectives and Petitioner’s

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defense counsel to strip him of an available defense that could

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have proved there was no evidence of an overt act on Petitioner’s

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part or evidence connecting him to the murder of the victim.

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(Doc. 18, 2.)

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Further, unspecified trace evidence in

Respondent filed an opposition to the motion on September

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27, 2012, in which Respondent argued that Petitioner’s motion was

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premature.

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Preliminarily, the Court notes that although Petitioner

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addresses an answer and asks this Court to dismiss Respondent’s

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answer to the petition, no answer has been filed by Respondent in

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this action.

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Fed. R. Civ. P. 60(b)(4) provides as follows:

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On motion and just terms, the court may relieve a party
or its legal representative from a final judgment, order,
or proceeding for the following reasons:
...
4) the judgment is void....

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Further, Rule 60(c)(1) expressly provides that a motion

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under Rule 60(b) must be made within a reasonable time, and for

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the first three reasons (not pertinent here), no more than a year

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after the entry of the judgment or order or the date of the

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proceeding.

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from a final judgment or order, and it is not contemplated that

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such a motion would be made before the entry of judgment or the

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final order.

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///

Thus, the rule expressly applies to relief sought

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No final judgment or order has been entered in the present

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case.

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was prematurely filed.

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motion to vacate a judgment be disregarded except as supplemental

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opposition to Respondent’s motion to dismiss the petition.

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Accordingly, Petitioner’s motion to vacate the judgment

II.

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It will be recommended that Petitioner’s

Proceeding by a Motion to Dismiss

Respondent has filed a motion to dismiss the petition on

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the ground that Petitioner filed his petition outside of the one-

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year limitation period provided for by 28 U.S.C. § 2244(d)(1).

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Rule 4 of the Rules Governing Section 2254 Cases in the

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United States District Courts (Habeas Rules) allows a district

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court to dismiss a petition if it “plainly appears from the face

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of the petition and any exhibits annexed to it that the

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

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The Ninth Circuit has allowed respondents to file motions to

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dismiss pursuant to Rule 4 instead of answers if the motion to

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dismiss attacks the pleadings by claiming that the petitioner has

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failed to exhaust state remedies or has violated the state’s

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procedural rules.

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420 (9th Cir. 1990) (motion to dismiss a petition for failure to

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exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03

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(9th Cir. 1989) (motion to dismiss for state procedural default);

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Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982)

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(same).

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the Court orders the respondent to respond, and the Court should

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use Rule 4 standards to review a motion to dismiss filed before a

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formal answer.

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///

See, e.g., O’Bremski v. Maass, 915 F.2d 418,

Thus, a respondent may file a motion to dismiss after

See, Hillery, 533 F. Supp. at 1194 & n.12.

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Here, Respondent's motion to dismiss addresses the

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untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1).

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The material facts pertinent to the motion are contained in

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copies of the official records of state judicial proceedings

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which have been provided by Respondent and Petitioner, and as to

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which there is no factual dispute.

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filed a formal answer, and because Respondent's motion to dismiss

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is similar in procedural standing to a motion to dismiss for

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failure to exhaust state remedies or for state procedural

Because Respondent has not

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default, the Court will review Respondent’s motion to dismiss

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pursuant to its authority under Rule 4.

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III.

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On April 18, 2006, in case number F04906535-0 in the

Background

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Superior Court of the State of California, County of Fresno

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(FCSC), Petitioner was convicted of two counts of murder of a

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woman and her unborn child.

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sentenced to two terms of life without the possibility of parole,

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enhanced by two terms of twenty-five years each for the personal

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use of a firearm pursuant to Cal. Pen. Code § 12022.53(d).

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1, LD 2 at 2.)2

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On May 30, 2006, Petitioner was

(LD

On October 23, 2008, the Court of Appeal of the State of

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California, Fifth Appellate District (CCA) affirmed the judgment

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on appeal and ordered that a parole revocation fine be stricken.

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(LD 2, 17.)

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On December 9, 2008, Petitioner filed a petition for review
in the California Supreme Court (CSC).

(LD 3.)

On January 14,

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“LD” refers to documents lodged by Respondent in support of the motion
to dismiss.

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2009, the CSC denied the petition for review without a statement

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of reasoning or citation of any authority.

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(LD 4.)

On April 8, 2010, Petitioner filed in the FCSC a petition

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for writ of habeas corpus.3

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denied the petition, explaining that Petitioner failed to state a

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prima facie case for relief with respect to his challenges to his

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convictions; further, some of his challenges could have been

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raised on appeal and thus would not be considered on habeas

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corpus.

(LD 6, 1-7.)

(LD 5.)

On June 17, 2010, the FCSC

Attached to the order of denial is a

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certification and declaration under penalty of perjury of a

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deputy clerk of the FCSC that on June 17, 2010, a copy of the

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order denying the petition was mailed to Petitioner.

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Petitioner declared in his petition for writ of habeas corpus

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subsequently filed in the CCA that he received notice of the

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FCSC’s denial of his habeas petition on July 12, 2010, via the

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prison mail system at Kern Valley State Prison (KVSP).

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On November 2, 2010, Petitioner filed a petition for writ of

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habeas corpus in the CCA.

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page.)

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a statement of reasoning or citation of authority.

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(Id. at 8.)

(LD 7, petition form at p. 6, and last

On February 17, 2011, the CCA denied the petition without
(LD 8.)

On November 8, 2011, Petitioner filed a petition for writ of

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habeas corpus in the CSC.

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December 1, 2011, the CSC marked “received” a supplemental

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petition for writ of habeas corpus.

(LD 9, petition form p. 6.)

On

On March 28, 2012, the CSC

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The Court will apply the mailbox rule in calculating the date of
filing and where possible will rely on the date the Petitioner signed a
document as the date of filing. Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2
(9th Cir. 2003), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S. 408
(2005).

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denied the petition for writ of habeas corpus without a statement

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of reasons or citation of authority.

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(LD 10.)

A search of the official website of the California courts

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reflects that no other post-trial petitions were filed by

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Petitioner in the CCA or CSC that corresponded with the pertinent

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convictions.4

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Petitioner filed his petition in this Court on January 27,

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2012.

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there is no other indication of when it was turned over to prison

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authorities for mailing, the date of filing is the date on which

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the Court received the document for filing.

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(Doc. 1.)

IV.

Because the petition is undated (id. at 8), and

(Doc. 1.)

Limitation Period for Filing a Petition for Writ of
Habeas Corpus

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On April 24, 1996, Congress enacted the Antiterrorism and
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Effective Death Penalty Act of 1996 (AEDPA).

The AEDPA applies

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to all habeas petitions filed after the enactment of the AEDPA.
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Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114
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F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118
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S.Ct. 586 (1997).

Petitioner filed his original petition for

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writ of habeas corpus on or about January 27, 2012.

Thus, the

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AEDPA applies to the petition.
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The AEDPA provides a one-year period of limitation in which
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a petitioner must file a petition for writ of habeas corpus.

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The Court may take judicial notice of facts that are capable of
accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned, including undisputed information posted on official
websites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331,
333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d
992, 999 (9th Cir. 2010). It is appropriate to take judicial notice of the
docket sheet of a California court. White v Martel, 601 F.3d 882, 885 (9th
Cir. 2010), cert. denied, 131 S.Ct. 332 (2010). The address of the official
website of the California state courts is www.courts.ca.gov.

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U.S.C. § 2244(d)(1).

As amended, subdivision (d) reads:

(1) A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court.
The limitation period shall run from the latest of –

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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;

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filing an
violation
States is
filing by

(B) the date on which the impediment to
application created by State action in
of the Constitution or laws of the United
removed, if the applicant was prevented from
such State action;

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(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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(2) The time during which a properly filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.

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28 U.S.C. § 2244(d).
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V.

Commencement of the Running of the Statute

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Here, pursuant to § 2244(d)(1)(A), the limitation period
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runs from the date on which the judgment became final.

The term

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“judgment” refers to the sentence imposed on the petitioner.
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Burton v. Stewart, 549 U.S. 147, 156-57 (2007).

The last

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sentence was imposed on Petitioner on May 30, 2006.
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Pursuant to § 2244(d)(1)(A), a judgment becomes final either
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upon the conclusion of direct review or the expiration of the
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time for seeking such review in the highest court from which
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review could be sought.

Wixom v. Washington, 264 F.3d 894, 897

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(9th Cir. 2001).

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The statute commences to run pursuant to § 2244(d)(1)(A)

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upon either 1) the conclusion of all direct criminal appeals in

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the state court system, followed by either the completion or

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denial of certiorari proceedings before the United States Supreme

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Court; or 2) if certiorari was not sought, then by the conclusion

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of all direct criminal appeals in the state court system followed

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by the expiration of the time permitted for filing a petition for

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writ of certiorari.

Wixom, 264 F.3d at 897 (quoting Smith v.

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Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied, 525

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U.S. 1187 (1999)).

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sought certiorari from the United States Supreme Court.

Neither party has indicated that Petitioner

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Here, Petitioner’s direct criminal appeals in the state

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court system concluded when his petition for review was denied by

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the California Supreme Court on January 14, 2009.

The time

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permitted for seeking certiorari was ninety days.

Supreme Court

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Rule 13; Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

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The Court will apply Fed. R. Civ. P. 6(a) in calculating the

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pertinent time periods.

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n.2 (9th Cir. 2008), cert. denied, 130 S.Ct. 2415 (2010).

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Applying Fed. R. Civ. P. 6(a)(1)(A), the day of the triggering

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event is excluded from the calculation.

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period commenced on January 15, 2009, the day following the

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California Supreme Court’s denial of review.

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Civ. P. 6(a)(1)(B), which requires counting every day, the

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ninetieth day was April 14, 2009.

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direct review expired on that date.

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///

See, Waldrip v. Hall, 548 F.3d 729, 735

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Thus, the ninety-day

Applying Fed. R.

Thus, the time for seeking

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Accordingly, the limitations period began to run on April

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15, 2009, the day following the expiration of the time for

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seeking certiorari and, absent any basis for tolling, concluded

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one year later on April 14, 2010.

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Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001)

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(the correct method for computing the running of the one-year

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grace period after the enactment of AEDPA is pursuant to Fed. R.

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Civ. P. 6(a), in which the day upon which the triggering event

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occurs is not counted).

Fed. R. Civ. P. 6(a);

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VI.

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Title 28 U.S.C. § 2244(d)(2) states that the “time during

Statutory Tolling

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which a properly filed application for State post-conviction or

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other collateral review with respect to the pertinent judgment or

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claim is pending shall not be counted toward” the one-year

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limitation period.

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on notice that his habeas petition may be subject to dismissal

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based on the statute of limitations, he has the burden of

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demonstrating that the limitations period was sufficiently tolled

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by providing the pertinent facts, such as dates of filing and

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denial.

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(citing Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002),

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abrogation on other grounds recognized by Moreno v. Harrison, 245

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Fed.Appx. 606 (9th Cir. 2007)).

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28 U.S.C. § 2244(d)(2).

Once a petitioner is

Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009)

An application for collateral review is “pending” in state

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court “as long as the ordinary state collateral review process is

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‘in continuance’-i.e., ‘until the completion of’ that process.”

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Carey v. Saffold, 536 U.S. 214, 219-20 (2002).

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this generally means that the statute of limitations is tolled
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In California,

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from the time the first state habeas petition is filed until the

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California Supreme Court rejects the petitioner's final

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collateral challenge, as long as the petitioner did not

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“unreasonably delay” in seeking review.

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Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).

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of limitations is not tolled from the time a final decision is

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issued on direct state appeal and the time the first state

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collateral challenge is filed because there is no case “pending”

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during that interval.

Id. at 221-23; accord,
The statute

Id.; see, Lawrence v. Florida, 549 U.S.

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327, 330-33 (2007) (time period after a state court’s denial of

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state post-conviction relief and while a petition for certiorari

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is pending in the United States Supreme Court is not statutorily

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tolled because no application for state post-conviction or other

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state collateral review is pending).

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In Carey v. Saffold, 536 U.S. 214, the Court held that an

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application is “pending” until it “has achieved final resolution

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through the State's post-conviction procedures.”

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application does not achieve the requisite finality until a state

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petitioner “completes a full round of collateral review.”

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219-20.

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application for post-conviction relief is pending during the

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“intervals between a lower court decision and a filing of a new

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petition in a higher court” and until the California Supreme

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Court denies review.

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1048 (9th Cir. 2003).

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Id. at 220.

An

Id. at

Accordingly, in the absence of undue delay, an

Id. at 223; Biggs v. Duncan, 339 F.3d 1045,

Here, on April 8, 2010, just six (6) days before the one-

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year limitation period otherwise would have run, Petitioner filed

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his petition in the FCSC.

Respondent does not contend that
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Petitioner’s first state habeas petition was improperly filed.

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Thus, the pendency of the habeas petition in the FCSC tolled the

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statute from April 8, 2010, through June 17, 2010, the date on

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which the FCSC denied the petition, for a total of seventy-one

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(71) days.

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If April 14, 2010, the initially calculated date of the

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running of the statutory period, were extended by the seventy-one

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days of tolling from the pendency of the habeas petition in the

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FCSC, the last day of the statutory period would be June 24,

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2010.

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CCA until November 2, 2010 – well beyond June 24, 2010.

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Petitioner’s second habeas petition was not filed in the

A.

Delay before Filing in the CCA

Petitioner may contend that the statute was tolled between

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the FCSC’s denial of the habeas petition on June 17, 2010, and

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the filing of the next habeas petition in the CCA on November 2,

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2010.

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tolled during the gap between the two proceedings because

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Petitioner unreasonably delayed after the denial of the FCSC

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petition on June 17, 2010, and before filing the second state

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habeas petition in the CCA on November 2, 2010.

However, Respondent contends that the statute was not

21

Absent a clear direction or explanation from the California

22

Supreme Court about the meaning of the term “reasonable time” in

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a specific factual context, or a clear indication that a filing

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was timely or untimely, a federal court hearing a subsequent

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federal habeas petition must examine all relevant circumstances

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concerning the delay in each case and determine independently

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whether the state courts would have considered any delay

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reasonable so as to render a state collateral review petition
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1

“pending” within the meaning of § 2244(d)(2).

2

546 U.S. 189, 197-98 (2006).

3

Evans v. Chavis,

The delay between the denial of the FCSC petition and the

4

filing of the habeas petition in the CCA was approximately four

5

and one-half months.

6

unreasonable because it is longer than the relatively short

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periods of 30 or 60 days provided by most states for filing

8

appeals.

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however, have been found to be unreasonable: 146 days between the

A delay of six months has been found to be

Evans v. Chavis, 546 U.S. at 201.

Shorter delays,

10

filing of two trial court petitions, Banjo v. Ayers, 614 F.3d

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964, 968-69 (9th Cir. 2010), cert. den., 131 S.Ct. 3023 (2011);

12

intervals of 81 and 92 days between the disposition of a writ at

13

one level and the filing of the next writ at a higher level,

14

Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011), cert.

15

den., 132 S.Ct. 554 (2011); unjustified delays of 115 and 101

16

days between denial of one petition and the filing of a

17

subsequent petition, Chaffer v. Prosper, 592 F.3d. 1046, 1048

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(9th Cir. 2010); and unexplained, unjustified periods of 97 and

19

71 days, Culver v. Director of Corrections, 450 F.Supp.2d 1135,

20

1140 (C.D.Cal. 2006); see, Sok v. Substance Abuse Training

21

Facility, 2011 WL 3648474, *4-*5 (No. 1:11-cv-00284-JLT-HC,

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E.D.Cal. Aug. 17, 2011) (163-day delay unreasonable, noting an

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apparent consensus emerging in the district courts in California

24

that any delay of sixty days or less is per se reasonable, but

25

that any delay “substantially” longer than sixty days is

26

unreasonable).

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28

Here, the CCA summarily denied the petition.

Thus, the CCA

did not expressly determine that the petition was untimely.
13

The

1

subsequent petition before the CSC was also summarily denied.

2

However, considering only the length of the delay, the Court

3

concludes that the delay of four and one-half months before

4

filing a petition in the CCA was a substantial delay because it

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far exceeds sixty days, or the customarily short periods of delay

6

considered reasonable.

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B.

Justification for the Delay before Filing in the
California Court of Appeal

8
To benefit from statutory tolling, a petitioner must
9
adequately justify a substantial delay.

28 U.S.C. § 2244(d)(2);

10
Evans v. Chavis, 546 U.S. at 192-93; Waldrip v. Hall, 548 F.3d at
11
734.

As a general rule, a habeas corpus petition must be filed

12
within a reasonable time after the petitioner or counsel knew, or
13
with due diligence should have known, the facts underlying the
14
claim as well as the legal basis of the claim.

In re Harris, 5

15
Cal.4th 813, 828 n.7 (citing In re Clark, 5 Cal.4th 750, 784
16
(1993)).

Under California law, a habeas “claim or sub-claim that

17
is substantially delayed will nevertheless be considered on the
18
merits if the petitioner can demonstrate ‘good cause’ for the
19
delay.”

In re Robbins, 18 Cal.4th 770, 805 (1998) (citing In re

20
Clark, 5 Cal.4th at 783).

Petitioner must show particular

21
circumstances, based on allegations of specific facts, sufficient
22
to justify the delay; allegations made in general terms are
23
insufficient.

In re Robbins, 18 Cal.4th at 787-88, 805 (citing

24
In re Walker, 10 Cal.3d 764, 774 (1974)).

The delay is measured

25
from the time the petitioner or counsel knew, or reasonably
26
should have known, of the factual information offered in support
27
of the claim and the legal basis for the claim.
28
14

In re Robbins,

1
2

18 Cal.4th at 787.
As the Ninth Circuit Court of Appeals has noted, there are

3

no standards for determining what period of time or factors

4

constitute “substantial delay” in noncapital cases or for

5

determining what factors justify any particular length of delay.

6

King v. LaMarque, 464 F.3d 963, 966 (9th Cir. 2006).

7

California’s time limit for filing a habeas petition in a non-

8

capital case is more “forgiving and flexible” than that employed

9

by most states.

10
11

Chavis, 546 U.S. at 202 (Stevens, J.,

concurring).
Here, Petitioner does not expressly advance any

12

justification for the delay.

13

exhaustion of state court remedies, a matter as to which no

14

deficiency is raised in the motion to dismiss and thus a subject

15

that is not directly before the Court.

16

that his efforts to exhaust state court remedies justified the

17

delay.

His opposition focuses on

Petitioner may be arguing

18

A review of the record provided by Respondent reveals that

19

there are significant differences between the petition filed in

20

the FCSC and the one filed in the CCA.

21

superior court raised essentially the same issues as the CCA

22

petition (prosecutorial destruction of unspecified exculpatory

23

evidence, namely, the vehicle connected with the murder;

24

prosecutorial vouching for the credibility of witnesses;

25

ineffective assistance of appellate counsel, including appellate

26

counsel’s failure to raise issues as well as to manage to

27

transfer the record of the trial court proceedings to Petitioner

28

in a timely fashion, which also involved alleged interference by
15

The petition filed in the

1

officials of the California Department of Corrections and

2

Rehabilitation (CDCR); and ineffective assistance of trial

3

counsel for failing to investigate the facts and Petitioner’s

4

alibi, retain the vehicle, and avoid its destruction and

5

destruction of unspecified, related evidence).

6

the claims were stated in a conclusional fashion, with the

7

factual bases of the claims often not set forth.

8

legal bases of the claims were set forth very briefly without

9

extended argument.

10

(LD 5.)

However,

Further, the

In contrast, the petition filed in the CCA contained greater

11

factual background.

12

hoped to have extracted from the vehicle were not identified,

13

Petitioner specified that evidence of bullet trajectories,

14

clothing, and blood could have been expected to have been found.

15

Petitioner included a factual background as well as legal

16

argument.

17

including a photograph of the interior of the vehicle showing its

18

contents before the vehicle was destroyed, and other pertinent

19

portions of the pretrial and trial proceedings; copies of

20

interviews with witnesses; a copy of a plea agreement allegedly

21

offered to or made with the chief prosecution witness who owned

22

the car in which the first shot of several that killed the victim

23

was fired, namely, co-participant Danial Archan; correspondence

24

between Petitioner’s counsel and the police concerning the

25

anticipated destruction or release of the vehicle; documentation

26

of Petitioner’s diligent and continuous efforts to see his trial

27

counsel; law enforcement detectives’ declarations concerning

28

having found no evidence in the vehicle; and declarations of

Although the precise evidence Petitioner had

Further, he attached exhibits to his petition,

16

1

arson and ballistics experts retained by the defense concerning

2

what type of evidence they anticipated could have been discovered

3

in the vehicle.

4

In sum, significant expansion of the petition occurred in

5

the interval between the denial of the FCSC petition and the

6

filing of the CCA petition.

7

Petitioner detailed in a declaration circumstances explaining the

8

delay in filing the petition, including difficulty in obtaining

9

the trial record that continued and had endured for three months,

Further, in the FCSC petition,

10

denial of access to the prison library despite having a valid

11

court deadline, and lack of library clerks when he visited the

12

library.

13

(Id. at 6 & “PG1.”)

In the petition filed in the CCA, Petitioner similarly

14

detailed circumstances explaining his delay in filing the

15

petition.

16

who was developing unspecified new evidence that supported his

17

petition.

18

diligent in timely filing his pleading, provided documentation of

19

his claim that he had continuously, and diligently requested to

20

see counsel during the pretrial and trial proceedings but had

21

succeeded in talking with counsel on only four occasions.

22

form petition at p. 6.)

23

investigator had a heavy caseload and had asked for a continuance

24

past the Christmas holidays, Petitioner’s new claims depended on

25

evidence both within and without the trial court record, and he

26

had not received the FCSC’s denial of his petition until July 12,

27

2010 via the prison mail system.

28

pages 1-3.)

Petitioner alleged that he had hired an investigator,

Petitioner generally alleged that he had remained

(LD 7,

He explained that his private

(Id. at first non-form text

Further, Petitioner was attempting to prepare and
17

1

file his first petition and was at best a layman in the area of

2

law.

3

administrative segregation at Kern Valley State Prison (KVSP) and

4

continued to be housed there when the CCA petition was filed.

5

(Id. at 3.)

6

materials the petitioner had or to which he could obtain access

7

until October 4, 2010, when a “small amount of the records needed

8

were provided to me by the staff.”

9

the preparation of the writ and the progress of the investigator.

On August 10, 2010, Petitioner was placed into

The placement resulted in the removal of all legal

(Id.)

This further delayed

10

Petitioner offered to provide prison records to support his

11

allegations.

12

(Id.)

It appears that Petitioner attempted to comply with the

13

state law requirement that a petitioner who files a petition for

14

writ of habeas corpus must allege specific facts to explain and

15

justify a delay.

16

Delay in seeking habeas corpus or other collateral relief has

17

been measured from the time a petitioner becomes aware of the

18

grounds on which he seeks relief.

19

California Supreme Court has accepted as adequate explanation and

20

justification for a five-year delay between a conviction and

21

filing a collateral attack on a judgment the petitioner’s grade

22

school education and inability to make use of information because

23

he was not aware of the law when, on learning of the law, the

24

petitioner immediately sought the assistance of counsel.

In re Clark, 5 Cal.4th at 765, 798 n.35.5

Id. at 765 n.5.

The

Id. at

25
5

26
27
28

The California Supreme Court has noted in this context that it will
take judicial notice of its own records and of the prior petitions filed by or
on behalf of a petitioner pursuant to Cal. Evid. Code § 452; because the
record of the appeal and any prior petition is readily available to the
California Supreme Court, it need not await opposition before summarily
denying a petition that is successive or unreasonably delayed. In re Clark, 5
Cal.4th at 798 n. 35.)

18

1

786.

2

had not completed the seventh grade, was not knowledgeable about

3

legal procedures, and diligently used the resources available to

4

prisoners for research and preparation of legal documents.

5

(citing state cases).

6

became aware of the legal and factual bases for his claims and

7

justifies any substantial delay in presenting the claims, a

8

petition may be considered timely.

9

Further, a three-year delay is excused where the petitioner

Id.

Thus, where a petitioner states when he

Under California law, the indigence and pro se status of a

10

petitioner does not create an exception to the requirement of

11

alleging specific facts to justify substantial delay.

12

Clark, 5 Cal.4th at 765.

13

knowledge of the law and lacked access to his papers and to legal

14

resources between early August and early October.

15

petition reveals that he used the trial file to augment and

16

document his factual allegations, and he used the law library to

17

add to the legal argument to the petition.

18

In re

Petitioner here alleged that he lacked

The CCA

A failure to receive notification from a court that it has

19

ruled on a petition for writ of habeas corpus is a basis for

20

concluding that a delay in filing a habeas petition in the next

21

higher California court was not unreasonable.

22

2008 WL 2119918, *6-*9 (No. CIV S-07-2284 JAM DAD P, E.D.Cal. May

23

20, 2008) (finding explained and not unreasonable, and hence

24

statutorily tolled pursuant to § 2244(d)(2), delay resulting from

25

a failure to receive a notice of a ruling until July 2005 with

26

respect to a petition filed in December 2004 and denied in April

27

2005, where the Petitioner was transferred, the evidence

28

supported a conclusion that he filed a notice of change of
19

Winston v. Sisto,

1

address, and he requested notice of the ruling in April 2005).

2

Here, Petitioner had approximately one month after receiving the

3

FCSC’s denial of his petition on July 12, 2010, until he was

4

placed in administrative segregation, where he had no access to

5

legal materials for approximately two months, and then had only

6

limited access for approximately a month thereafter before filing

7

the petition in the CCA on November 2, 2010.

8

Petitioner did not specify when he received all his records,

9

or which records he included in the CCA petition from the small

10

amount of records provided to him by staff on October 4, 2010.

11

Nevertheless, considering the extensive amplification and

12

documentation of Petitioner’s petition in the CCA, and given the

13

short period of time when Petitioner had knowledge of the FCSC’s

14

denial of his petition and access to his legal materials before

15

the filing of the CCA petition, the Court cannot conclude that if

16

the California courts had considered the issue, they would have

17

determined that any substantial delay in filing the habeas

18

petition in the CCA was not justified. Cf., Bui v. Hedgpeth, 516

19

F.Supp.2d 1170, 1175–76 (C.D.Cal. 2007) (pro se petitioner was

20

entitled to “gap tolling” for a period of 83 days where during

21

the pertinent time, he substantially revised and augmented a

22

prior trial court petition, adding multiple new grounds for

23

relief, and for another period of 158 days where he suffered

24

restricted access to the law library to make required copies of

25

the petition); Roeung v. Felker, 484 F.Supp.2d 1081, 1083–85

26

(C.D.Cal. 2007) (pro se petitioner was entitled to “gap tolling”

27

for a six-month delay between the trial court’s denial of a

28

habeas petition and filing a petition in the court of appeal
20

1

because of a lengthy record, complex issues, Petitioner’s having

2

conducted further legal research revealing additional grounds for

3

relief, and his substantial augmentation and rewriting of the

4

trial court petition); Haynes v. Carey, 2007 WL 3046008, *2-*6

5

(No. CIV S-07-0484 LKK DAD P, E.D.Cal. Oct. 18, 2007) (pro se

6

petitioner was entitled to “gap tolling” for a 170-day delay

7

between denial of a petition and filing in the next higher court

8

where the respondent did not reply to Petitioner’s contentions

9

that he was delayed because he suffered limited access to the law

10

library due to closures and lock-downs, meetings of staff in

11

prison, training, and irregular schedules).

12

Here, although Respondent provided this Court with the state

13

court records reflecting petitioner’s habeas petitions,

14

Respondent did not address how the contents of those petitions

15

reflected explanations or justification for any delays in the

16

filing of the petitions.

17

provided sufficient explanation to the California courts to

18

justify his 138-day delay in filing a petition in the CCA.

19

Therefore, the entire time during which the petition was pending

20

in the CCA (November 2, 2010, through February 17, 2011) was

21

statutorily tolled.

22

denial on June 17, 2010, until the filing of the CCA petition on

23

November 2, 2010, was likewise subject to statutory tolling on

24

the ground that a petition was pending.

25

C.

The court concludes that Petitioner

Further, the “gap” or time after the FCSC’s

Delay before Filing in the California Supreme
Court

26
Petitioner delayed for 263 days, or almost nine months,
27
after the CCA’s denial of his petition on February 17, 2011, and
28
21

1

the filing of his petition in the CSC on November 8, 2011.

2

period of time far exceeds thirty or sixty days, the customarily

3

short periods of delay considered reasonable.

4

D.

This

Justification for the Delay before Filing in the
California Supreme Court

5
Again, Petitioner does not expressly argue that he was
6
entitled to statutory tolling during that time period.
7
Petitioner’s opposition focuses on exhaustion of state court
8
remedies, which has not been shown to be by itself a sufficient
9
explanation or justification for a substantial delay.
10
However, reference to the state court records provided by
11
Respondent in support of the motion reflects that the petition
12
filed in the CSC was essentially the same as the petition filed
13
in the CCA.

(LD 7, LD 9.)

The statements of the grounds and the

14
facts of the claims were virtually identical, with the addition
15
of a few words to the heading of the second ground and a formal
16
prayer for relief.
17
Although a supplemental petition was marked “received” by
18
the CSC on December 1, 2011, it is not clear that the supplement
19
was filed or considered by the state court.

Further, it is not

20
clear that any concern related to these claims caused any delay
21
in initially filing the habeas petition in the CSC.
22
Further, many of the six additional claims set forth in the
23
supplement were not new.6

For example, one supplemental claim

24
contended that because the conviction was supported by the sole
25
testimony of an accomplice without independent corroboration,
26
27
28

6

Indeed, in the supplement, Petitioner incorporated the facts stated in
the original petition for the grounds stated therein. (LD 9, supp. pet.
rec’d. Dec. 1, 2011, at 12.)

22

1

Cal. Pen. Code § 1111 had been violated.

2

decision on appeal, the CCA had addressed a related contention

3

concerning an issue of whether or not Archan was an accomplice as

4

a matter of law and whether the instructions given on accomplice

5

testimony were correct.

6

the CCA reviewed § 1111, analyzed the trial evidence, and

7

concluded that there was sufficient corroboration in the record

8

to satisfy the requirement in § 1111 of corroboration of Archan’s

9

testimony.

However, in the CCA’s

In the course of addressing this issue,

(LD 2, 10-12.)

Thus, both the legal and factual

10

grounds of the claim were apparent at the time the appeal was

11

determined.

12

Two additional claims alleged in the supplement were closely

13

related, namely, that there was insufficient evidence of an overt

14

act on Petitioner’s part to commit the murder independent of

15

Archan’s testimony, and that the conviction was based on

16

speculation or assumptions absent corroboration of the accomplice

17

testimony.

18

because it concluded that Archan’s testimony was sufficiently

19

corroborated.

20

sources of evidence of Petitioner’s guilt, and it characterized

21

the evidence of Petitioner’s guilt as overwhelming.

22

12, 15 n.7.)

23

discovery of these claims long after the appeal was decided could

24

explain or justify a delay of nearly nine months in filing the

25

petition.

26

The CCA’s opinion appears to dispose of these claims

The opinion also noted that there were multiple

(LD 2, 10-

It thus does not appear that the purported

Petitioner alleged in the supplement that the prosecution

27

obtained the conviction by means of perjured testimony of

28

officers who declared under penalty of perjury that the vehicle
23

1

had been inspected but nothing of evidentiary value had been

2

discovered other than glass, and that Petitioner’s counsel had

3

agreed that the car could be released.

4

declarations were before the CCA.

5

the petitions filed in the CCA and CSC, Petitioner detailed the

6

duty of the prosecutor to test the veracity of Archan and the

7

falsity of his testimony, and the petition referenced the

8

declarations of the officers in this context.

9

ground 1, text pp. 1-10.)

However, the officers’

(LD 7, exh. 2.)

Further, in

(See, e.g., LD 7,

Even if the precise legal basis for

10

the supplemental claim was not included in the earlier petitions,

11

it does not appear that such a discovery could justify the

12

lengthy delay in the present case.

13

Petitioner also alleged in the supplement received by the

14

CSC that the trial record lacked any evidence that Archan had

15

provided reliable information to the prosecution in the past, and

16

thus he did not have the background to qualify as an informant.

17

However, as with the preceding claim, in view of the inclusion in

18

previous petitions of extensive material regarding inconsistent

19

and false statements given by Archan, the delayed discovery of a

20

legal basis for the supplemental claim concerning his

21

unreliability could not justify the extended delay in question.

22

Further, any asserted absence of a history of Archan’s having

23

served as an informant would not provide any legal basis to

24

undermine Archan’s status as an eyewitness to the events about

25

which he testified.

26

Accordingly, the Court concludes that Petitioner has not

27

provided justification or good cause for the substantial delay

28

between the denial of the CCA petition and his filing of the CSC
24

1
2
3

petition.
E.

Actual Innocence Exception

Petitioner’s final claim in the supplemental petition was

4

that he was factually innocent of the crime.

5

contended that Cal. Pen. Code § 1111 was violated because of the

6

absence of independent evidence to corroborate his connection to

7

the murder.

8

introduced at trial was testimony of Archan that Archan had

9

participated in dragging the injured, pregnant victim out of the

10

car before the Petitioner shot her again because Archan assumed

11

he would be harmed if he did not cooperate.

12

asserted that defense photographs demonstrated that there was

13

evidence in the car, which contradicted the officers’ perjured

14

declarations, and that Petitioner was willing to testify under

15

oath that he was factually innocent.

16

Petitioner

Petitioner asserted that absent from the evidence

1.

Petitioner further

(LD 9, supp. pet., 11.)

Legal Standards

17

In In re Reno, - Cal.4th -, 146 Cal.Rptr.3d 297, 328-29

18

(2012), the California Supreme Court summarized the governing law

19

as follows:

20
21
22
23
24
25
26
27
28

Our rules establish a three-level analysis for
assessing whether claims in a petition for a writ of
habeas corpus have been timely filed. First, a claim
must be presented without substantial delay. Second, if
a petitioner raises a claim after a substantial delay,
we will nevertheless consider it on its merits if the
petitioner can demonstrate good cause for the delay.
Third, we will consider the merits of a claim presented
after a substantial delay without good cause if it
falls under one of four narrow exceptions: “(i) that
error of constitutional magnitude led to a trial that
was so fundamentally unfair that absent the error no
reasonable judge or jury would have convicted the
petitioner; (ii) that the petitioner is actually
innocent of the crime or crimes of which he or she was
convicted; (iii) that the death penalty was imposed by
a sentencing authority that had such a grossly
25

1
2
3
4

misleading profile of the petitioner before it that,
absent the trial error or omission, no reasonable judge
or jury would have imposed a sentence of death; or (iv)
that the petitioner was convicted or sentenced under an
invalid statute.” (In re Robbins, supra, 18 Cal.4th at
pp. 780–781, 77 Cal.Rptr.2d 153, 959 P.2d 311.) The
petitioner bears the burden to plead and then prove all
of the relevant allegations. (Ibid.)

5
In re Reno, 146 Cal.Rptr.3d at 328-29.
6
When California courts apply actual innocence as an
7
exception to the untimeliness bar, they do so exclusively by
8
reference to state law.

In re Robbins, 18 Cal.4th at 811.

To

9
establish this exception, a petitioner must show that the
10
purported evidence of innocence undermines the entire prosecution
11
case and points unerringly to innocence or reduced culpability.
12
Id. at 812.

New evidence that is merely relevant to an issue

13
already disputed at trial which does no more than conflict with
14
trial evidence is not sufficient to undermine the judgment.

In

15
re Clark, 5 Cal.4th at 798 n.33.

It is not sufficient that the

16
evidence might have raised a reasonable doubt as to guilt;
17
rather, the petitioner must establish actual innocence, a
18
standard that cannot be met with evidence that a reasonable jury
19
could have rejected.

Id.

The petitioner bears a heavy burden of

20
satisfying the court that the evidence of innocence could not
21
have been, and presently cannot be, refuted.

Id.

22
2.

Factual Background

23
The facts of Petitioner’s offenses were set forth in the
24
decision of the CCA (LD 2, 2-9) and will be briefly summarized to
25
permit consideration of whether Petitioner’s purported evidence
26
of innocence undermines the entire prosecution case and points
27
unerringly to innocence or reduced culpability.
28
26

1

The testimony of Daniel Archan, Jr., was the only testimony

2

of a witness to Petitioner’s conduct in shooting the victim and

3

participating in the burning of the car connected to the

4

homicide.

5

in a romantic relationship for about two years and had a

6

daughter.

7

car on the afternoon of September 21, 2004; they smoked

8

methamphetamine, marijuana, and drank beer.

9

request, Archan took Petitioner to Gonzalez’s apartment, where

Petitioner and the victim, America Gonzalez, had been

Archan testified he picked up Petitioner in Archan’s

At Petitioner’s

10

Petitioner, who seemed angry and anxious, entered and exited

11

several times and came out with their daughter, whom the men

12

delivered to Petitioner’s mother’s house.

13

The men returned to Gonzalez’s apartment at about 8:00 or

14

9:00 p.m., where Petitioner brought Gonzalez out to the car.

15

Archan drove them to Petitioner’s mother’s house, where

16

Petitioner and Gonzalez visited briefly and then returned to the

17

car.

18

for Petitioner to come out.

19

methamphetamine and drank more beer in an area near some

20

vineyards.

21

Archan took Petitioner to the house of a friend and waited
Archan and Petitioner smoked more

Gonzalez remained in the back seat, drinking a beer.

Petitioner exited the vehicle to relieve himself.

He pulled

22

out a two-barreled shotgun which had been hidden in Petitioner’s

23

pocket or the side of Petitioner’s seat.

24

wearing white gloves, moved the passenger’s seat forward, pointed

25

the shotgun at Gonzalez, and started calling her names.

26

Archan tried to calm Petitioner, Petitioner pointed the gun at

27

Archan and fired, which caused the pellets to go through the

28

window of the driver’s side door.
27

Petitioner, who was

When

When Archan got out of the car

1

and again tried to calm Petitioner, Archan was so scared he

2

urinated on the ground.

3

threatened to shoot her, tried to pull her out of the car by her

4

feet when she refused his command to exit, hit her with the gun,

5

and then shot into the car.

6

over, rapidly moving her hands and making a retching noise.

7

Petitioner pointed the gun at Gonzalez,

Archan observed Gonzalez hunched

Archan followed Petitioner’s order to drag Gonzalez out of

8

the car after Petitioner threatened to shoot him if he failed to

9

follow orders.

Petitioner then ordered Archan to start the car

10

and pointed the shotgun at Gonzalez; Archan heard two more shots

11

from the shotgun.

12

Petitioner directed Archan to a location where Petitioner

13

had Archan turn off the car; Petitioner put a rag into the gas

14

tank and lit it.

15

trailer house they had visited earlier in the day, where

16

Petitioner told the two occupants that he had killed someone.

17

One man took Petitioner’s gun and put it underneath the trailer

18

house; the other gave Archan and Petitioner a ride to Selma.

19

attempt at burning the clothes was not successful.

20

and Archan arrived at a house where Petitioner obtained clothes

21

for them to wear.

22

brother’s house, Petitioner told his brother that he had killed

23

Gonzalez.

24

Petitioner stated that they had been in a fight with some men who

25

had stolen Archan’s vehicle.

26

stolen vehicle.

27
28

Eventually the car burned.

The two went to a

An

Petitioner

Upon being transported to Petitioner’s

The brother took them to the Licons’ house, where

Archan called police to report a

Archan initially claimed that his car had been stolen while
he slept.

However, after a few days, Archan became frightened by
28

1

Petitioner’s driving by his house and calling him; Archan felt

2

that if he did not talk to police, something would happen to him.

3

Archan admitted to a detective that he was with Petitioner when

4

Petitioner killed Gonzalez.

5

charges as Petitioner, which carried life in prison without the

6

possibility of parole.

7

charge of being an accessory to a crime, and he served a three-

8

year maximum sentence pursuant to a plea agreement which required

9

Archan to testify truthfully in Petitioner’s prosecution.

Initially Archan faced the same

However, Archan pled guilty to a felony

10

Archan’s brother testified that shortly after the murder,

11

Archan told him that Petitioner was the one who set the car on

12

fire, and that Archan put his clothes in a bag that was burned

13

when the vehicle was burned.

14

Significant corroborating evidence was introduced at trial.

15

Petitioner told the police that, shortly before the murder, he

16

and Archan picked up Gonzalez and went to the Licon house, where

17

Gonzalez walked away after arguing with Petitioner.

18

also stated Archan would not commit such a crime as the murder.

19

Petitioner

A school bus driver discovered Gonzalez’s body at about 6:30

20

a.m. on September 22, 2004, lying on the side of the road at the

21

intersection of Lincoln and Indianola Avenues.

22

started from the north side of Lincoln Avenue and ended where the

23

body was located, indicating that the body was moved from one

24

location to its final resting place; broken glass, which appeared

25

to be from an automobile, was found where the drag marks started.

26

There were tire tracks and a wet spot.

27

tracks at the scene, one bearing a Nike logo and the second an

28

athletic shoe impression which was similar to a shoe track found
29

Fresh drag marks

There were two shoe

1

at the site of Archan’s burned vehicle.

2

An autopsy revealed that Gonzalez, who was three to four

3

months pregnant, suffered one shotgun wound to the chest that

4

perforated the left lung and the left atrium of the heart, shot

5

from a distance of about three feet; another wound in the middle

6

of the chest, which damaged most of the heart and the fourth and

7

fifth vertebrae in the back, shot from about three feet; and a

8

wound to the outside of the left elbow which shattered the

9

humerus and indicated the shot was fired from a distance of about

10

six feet.

11

injuries on the top of her left foot, left big toe, and back,

12

consistent with her feet being wedged into the back of a seat,

13

and with being dragged while on her back.

14

injury to the nose consistent with being struck in the nose with

15

the barrel of a sawed-off shotgun.

16

the wounds, and the fetus died as a result of the mother’s death.

17

Gunshots were heard around 11:25 or 11:30 p.m. near the

Gonzalez also suffered abrasions, including scraping

There was also an

Gonzalez died as a result of

18

intersection on the night of September 21.

19

at 1:24 a.m. had been reported as having been stolen after 10:00

20

p.m. on September 21, 2004 – was discovered by law enforcement

21

officers in a rural area of Kings County.

22

burned, and its tires were determined to have made the tire

23

tracks located at the scene of the murder.

Archan’s car – which

The vehicle had been

24

DNA testing established a 99.999 percent chance that the

25

fetus’s father was Robert Ruiz; neither Petitioner nor Archan was

26

the father.

27

was the father of the unborn child, and Petitioner had appeared

28

shocked.

Petitioner’s brother had told Petitioner that Ruiz

Two days before Gonzalez was murdered, Petitioner
30

1

pulled her by her hair to prevent her from entering her sister’s

2

car.

3

Petitioner accost Gonzalez, leave a red mark on her face, and

4

pull her hair and hit her.

5

similar acts of violence.

6

On two other occasions, Gonzalez’s sister observed

Others had observed additional,

Several witnesses corroborated various aspects of Archan’s

7

testimony, including the Licon brothers, who saw Petitioner

8

around 10:00 p.m. at their home, fell asleep, and awakened at

9

midnight or between midnight and 1:00 a.m., when Petitioner and

10

Archan were making loud noises and Archan was using the

11

telephone.

12

Archan that the latter should report his car as stolen; it was

13

known that Petitioner owned a double barrel shotgun.

14

brothers gave Petitioner and Archan a ride home in the morning.

15

Two prisoners housed with or adjacent to Petitioner in the

One of the Licon brothers heard Petitioner tell

One of the

16

jail testified that Petitioner admitted to shooting Gonzalez.

17

Petitioner told one of them, who appeared to be a friend of Ruiz,

18

that he did so because Gonzalez was pregnant with Ruiz’s child.

19

Because of their cooperation, both prisoners received substantial

20

reductions in the charges and terms they faced.

21

Petitioner presented two experts at trial.

A pathologist

22

generally agreed with the autopsy results but opined that the

23

wound to the arm was caused by a gunshot no more than six feet

24

from Gonzalez inflicted when the shooter was outside of the

25

vehicle and Gonzalez was inside.

26

and one-half feet from her when the two wounds to the chest were

27

inflicted.

28

seat when shot, and the shooter could have been outside of the

The shotgun was probably one

She could have been in the right rear passenger’s

31

1

vehicle on the passenger’s side; however, the expert believed

2

this to be an unlikely scenario based on his common-sense

3

understanding of people's reaction when a gun is pointed at them,

4

although it was impossible to predict.

5

testified he did not think it was likely that the bruising on the

6

foot was caused by Gonzalez’s hooking her feet under the seat to

7

avoid being dragged out of the vehicle.

8

however, that the victim could have been sitting in the rear

9

passenger’s seat with the shooter positioned outside the

Another forensic expert

It was possible,

10

passenger door when she was shot in the arm, just as Archan

11

testified.

12

occurred with Gonzalez and the shooter in different positions.

13

(LD 2, 2-9.)

14
15

It was also possible that the injuries could have

3.

Analysis

It must be determined whether petitioner's purported

16

evidence of innocence “‘undermine[s] the entire prosecution case

17

and point[s] unerringly to innocence or reduced culpability.’”

18

In re Clark, 5 Cal.4th at 798 n.33.

19

The asserted absence of evidence to corroborate Petitioner’s

20

connection to the murder is not supported by the record.

21

addition to Archan's testimony, the record reflects substantial

22

physical and forensic corroborating evidence, the observations of

23

multiple persons who observed Petitioner and Archan on the night

24

of the murder, Petitioner’s own statements to law enforcement

25

officers and to fellow prisoners, and propensity evidence.

26

degree of corroboration in the record does not even suggest, let

27

alone demonstrate, that Petitioner is actually innocent of the

28

crime.
32

In

The

1

Petitioner emphasizes that defense photographs of the burned

2

vehicle suggest that there was evidence in the car, such as

3

clothing or a bag, which contradicted the declarations of law

4

enforcement officers who found no evidence other than glass.

5

However, even if that were true, Petitioner has not suggested

6

how, in light of the abundance of evidence supporting

7

Petitioner’s guilt of murder, it could constitute irrefutable

8

evidence of innocence of the offense or the degree of the offense

9

of which Petitioner was convicted.

Even Petitioner’s own experts

10

substantially conceded that the prosecution’s shooting scenario

11

was possible.

12

Finally, Petitioner’s willingness to testify under oath that

13

he is innocent does not suffice to establish actual innocence.

14

The precise substance of any such testimony is not set forth.

15

However, a contradictory version of the pertinent facts would not

16

undermine the entire prosecution case or point unerringly to

17

innocence or reduced culpability.

18

conflict with trial evidence, and, in light of the overwhelming

19

evidence of Petitioner’s guilt, would constitute evidence that a

20

reasonable jury could have rejected.

21

sufficient to establish actual innocence.

22

at 798 n.33.

23

It would, at most, merely

It thus would not be
In re Clark, 5 Cal.4th

Petitioner has not shown that any evidence of innocence that

24

Petitioner could testify to could not have been, and presently

25

cannot be, refuted.

26

he did not establish actual innocence sufficient to constitute an

27

exception under state law to California’s untimeliness rule.

28

///

Id.

Accordingly, the Court concludes that

33

1

In sum, Petitioner did not justify with a showing of good

2

cause the 263-day delay after the CCA’s denial of his petition on

3

February 17, 2011, and the filing of his petition in the CSC on

4

November 8, 2011.

5

innocence, as defined by California law, as an exception to

6

California’s untimeliness bar.

7

Further, Petitioner did not establish actual

Accordingly, the Court concludes that the limitation period

8

began to run again on February 18, 2011 – the day after the CCA

9

denied Petitioner’s habeas petition.

Petitioner’s petition was

10

filed here on January 27, 2012, long after the expiration of the

11

few days remaining of the one-year statutory period.

12

VII.

13

In his supplemental opposition (denominated a motion to

14

vacate), Petitioner declared under penalty of perjury that he had

15

witnessed unspecified agents of the prosecutor, police, and

16

defense counsel for Petitioner and his co-defendant “knowingly

17

coerce” his co-defendant with a bribe of a plea deal to offer

18

perjured testimony against Petitioner to secure the tainted

19

conviction and sentence challenged in Petitioner’s petition.

20

Further, unspecified trace evidence in “the vehicle related to

21

this case” was deliberately and knowingly destroyed pursuant to

22

the direction of detectives and Petitioner’s defense counsel to

23

strip him of an available defense that could have proved there

24

was no evidence of an overt act on Petitioner’s part or evidence

25

connecting him to the murder of the victim.

26

Equitable Exception of Actual Innocence

(Doc. 18, 3.)

The question of whether a showing of actual innocence will

27

bring a petitioner within an exception to the statute of

28

limitations, and the related question of whether a petitioner
34

1

claiming actual innocence must have exercised reasonable

2

diligence in raising his claim, are presently pending before the

3

United States Supreme Court.

4

665 (6th Cir. 2012), cert. granted, McQuiggin v. Perkins, 2012 WL

5

3061886 (No. 12-126, U.S., Oct. 29, 2012).

6

Court has not yet decided whether actual innocence is an

7

exception to AEDPA’s statute of limitations, the Ninth Circuit

8

Court of Appeals has held that a credible claim of actual

9

innocence constitutes an equitable exception to AEDPA’s statute

10

of limitations such that a petitioner who makes such a showing

11

may have his otherwise time-barred claims heard on the merits.

12

Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011).7

13

exception extends only to a “‘narrow class of cases...

14

implicating a fundamental miscarriage of justice’ because a

15

‘constitutional violation has probably resulted in the conviction

16

of one who is actually innocent.’”

17

Delo, 513 U.S. 298, 314-315 (1995) (internal quotation marks

18

omitted)).

19

See, McQuiggin v. Perkins, 670 F.3d

Although the Supreme

The

Id. at 937 (quoting Schlup v.

The evidence of innocence must be “‘so strong that a court

20

cannot have confidence in the outcome of the trial unless the

21

court is also satisfied that the trial was free of nonharmless

22

constitutional error.’”

23

The “‘petitioner must show that it is more likely than not that

24

no reasonable juror would have convicted him in the light of the

25

new evidence.’”

Id. (quoting Schlup, 513 U.S. at 316).

Id. at 938 (quoting Schlup, 513 U.S. at 327).

26
27
28

7

The Ninth Circuit did not decide what diligence, if any, a petitioner
must demonstrate in order to qualify for the actual innocence exception. Id.
at 934 n.9.

35

1

Schlup requires a petitioner “‘to support his allegations of

2

constitutional error with new reliable evidence–-whether it be

3

exculpatory scientific evidence, trustworthy eyewitness accounts,

4

or critical physical evidence–-that was not presented at trial.’”

5

Lee v. Lampert at 938 (quoting Schlup, 513 U.S. at 324).

6

habeas court then considers all the evidence, both old and new,

7

and incriminating and exculpatory, and makes a probabilistic

8

determination about what reasonable, properly instructed jurors

9

would do.

Id. at 938.

The

A petitioner need not affirmatively prove

10

innocence or demonstrate absolute certainty about the

11

petitioner’s guilt or innocence; it is sufficient to cast doubt

12

on the conviction by undercutting the reliability of the proof of

13

guilt.

14

under Jackson v. Virginia, 443 U.S. 307 (1979), in determining

15

actual innocence, the credibility of witnesses may need to be

16

assessed; further, the mere existence of sufficient evidence to

17

convict is not determinative.

18

Schlup standard incorporates the standard of proof of Murray v.

19

Carrier, 477 U.S. 478 (1986)).

20

assess how reasonable jurors would react to the overall, newly

21

supplemented record.

Id.

Unlike analysis of the sufficiency of the evidence

Id. at 938 n.13 (noting that the

Instead, a federal court must

Id.

22

Here, the evidence of actual innocence that Petitioner

23

offers includes Petitioner’s generalized allegations of official

24

coercion and bribery of Archan, and the alleged loss of trace

25

evidence in the vehicle that allegedly stripped Petitioner of an

26

available defense that could have proved there was no overt act

27

on the part of Petitioner or evidence connecting him to the

28

murder of the victim.
36

1

None of the matters that Petitioner offers has been shown to

2

constitute new evidence or matter that could not have been

3

presented at trial.

4

witnessed coercion and bribery of his “co-defendant,” (doc. 18 at

5

3), which the Court understands as a reference to Archan, to give

6

perjured testimony are too general and conclusional to undercut

7

the trial evidence.

8

involved except by function (prosecutor, police, defense

9

counsel), and he provides no details concerning the time, place,

10
11

Further, Petitioner’s allegations of having

Petitioner does not identify the persons

or other particulars of any alleged coercion.
Petitioner refers to the “bribe of a plea deal.” (Id.)

12

However, trial jurors were presented with evidence of Archan’s

13

extremely favorable plea agreement for a maximum prison term of

14

three years for being an accessory and his probable release after

15

testifying, as well his previous inconsistent statements to

16

detectives and his fear of Petitioner.

17

jury thus considered essentially the same bases for challenging

18

Archan’s credibility as Petitioner now offers.

19

not offer any additional matter that would render it more likely

20

than not that no reasonable juror would have convicted him in

21

light of it.

22

(LD 2, 6.)

The trial

Petitioner does

With respect to Petitioner’s contention that trace

23

exculpatory evidence in the vehicle was deliberately destroyed

24

on the order of unnamed detectives and his defense counsel,

25

Petitioner has not established what the evidence would have shown

26

or that the evidence was exculpatory in any sense.

27

the multiple items of circumstantial evidence in the record that

28

tend to establish Petitioner’s guilt, Petitioner does not explain
37

In light of

1

how evidence that might have been found in the car would have

2

proved that there was no evidence connecting Petitioner to the

3

murder.

4

sources of evidence tending to show Petitioner’s connection to,

5

and involvement in, the crime could be undercut by physical

6

evidence in the car.

7

Indeed, it is difficult to understand how the multiple

Petitioner argues that evidence that was destroyed with the

8

car stripped him of an available defense that could have proved

9

there was no evidence of an overt act on Petitioner’s part, which

10

apparently means that the destroyed evidence could have shown

11

that Petitioner was not the shooter.

12

experts conceded that the prosecution’s scenario was possible.

13

(See, e.g., XXI RT 4472.)

However, Petitioner’s own

14

Petitioner’s fire expert testified that he had observed in a

15

photograph visible traces of shoes and a bag handle in the layers

16

of ashes remaining in the car.

17

officer testified that upon examining the contents of the car and

18

sifting through them, he discovered no lead, shotgun shot or

19

pellets, or signs of shotgun damage.

20

10.)

21

investigated the scene and the burnt vehicle on behalf of the

22

sheriff’s department, testified he sifted through the interior

23

ashes of the car and found no clothing, shotgun, shotgun shot,

24

shotgun pellet or shell residue, scarring, or shotgun shot damage

25

inside the car.

However, a law enforcement

(XIV RT 2801; XV RT 2905-

William Patrick O’Brien, an identification technician who

(XIV RT 2618 2649, 2759-63, 2767-68, 2779-88.)8

26
27
28

8

O’Brien signed a declaration stating that he had examined the burnt
car at the scene of the burning, but that was not true; before signing the
declaration, he had read it, but he had misread the specific portion of the
declaration, which had been prepared by someone else. (XIV RT 2688-91.)

38

1

The jury was informed that Petitioner’s former counsel, the

2

public defender, had access to the vehicle and the evidence

3

inside of it, and the car was dismantled and destroyed after

4

inspection and upon agreement of both the defendant’s prior

5

counsel and the People.

6

(XXI RT 4921; XXI RT 4444.)

The Court concludes that Petitioner has not presented any

7

evidence beyond what was already presented to the jury, which

8

considered any conflict in the evidence concerning the contents

9

and treatment of the car.

He has not undercut the reliability of

10

the proof of guilt or shown that it is more likely than not that

11

no reasonable juror would have convicted him in the light of any

12

new evidence.

13

Petitioner has not met his burden of showing actual

14

innocence under the applicable standard.

15

concludes that Petitioner has not shown that the statute should

16

be equitably tolled on the basis of the equitable exception of

17

actual innocence.

18

Accordingly, the court

In sum, the statute of limitations began running on April

19

15, 2009.

20

of the limitation period, a period of statutory tolling commenced

21

with the filing of the petition in the FCSC.

22

tolled until February 17, 2011, when the CCA denied Petitioner’s

23

habeas petition.

24

day, and the six days left of the statutory period expired long

25

before Petitioner filed his petition in the CSC on November 8,

26

2011, 263 days after the CCA’s denial.

27
28

On April 8, 2010, only six days before the expiration

The statute was

The statute began to run again on the following

Accordingly, Petitioner’s federal petition, filed on January
27, 2012, was untimely filed.

Thus, it will be recommended that
39

1

Respondent’s motion to dismiss the petition as untimely be

2

granted.

3

VIII.

4

Unless a circuit justice or judge issues a certificate of

Certificate of Appealability

5

appealability, an appeal may not be taken to the Court of Appeals

6

from the final order in a habeas proceeding in which the

7

detention complained of arises out of process issued by a state

8

court.

9

U.S. 322, 336 (2003).

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue

10

only if the applicant makes a substantial showing of the denial

11

of a constitutional right.

12

petitioner must show that reasonable jurists could debate whether

13

the petition should have been resolved in a different manner or

14

that the issues presented were adequate to deserve encouragement

15

to proceed further.

16

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

17

certificate should issue if the Petitioner shows that jurists of

18

reason would find it debatable whether the petition states a

19

valid claim of the denial of a constitutional right or that

20

jurists of reason would find it debatable whether the district

21

court was correct in any procedural ruling.

22

529 U.S. 473, 483-84 (2000).

23

§ 2253(c)(2).

Under this standard, a

Miller-El v. Cockrell, 537 U.S. at 336
A

Slack v. McDaniel,

In determining this issue, a court conducts an overview of

24

the claims in the habeas petition, generally assesses their

25

merits, and determines whether the resolution was debatable among

26

jurists of reason or wrong.

27

applicant to show more than an absence of frivolity or the

28

existence of mere good faith; however, it is not necessary for an

Id.

40

It is necessary for an

1

applicant to show that the appeal will succeed.

2

Cockrell, 537 U.S. at 338.

Miller-El v.

3

A district court must issue or deny a certificate of

4

appealability when it enters a final order adverse to the

5

applicant.

6

Rule 11(a) of the Rules Governing Section 2254 Cases.

It does not appear that reasonable jurists could debate

7

whether the petition should have been resolved in a different

8

manner.

9

denial of a constitutional right.

Petitioner has not made a substantial showing of the
Accordingly, it will be

10

recommended that the Court decline to issue a certificate of

11

appealability.

12

IX.

13

Accordingly, it is RECOMMENDED that:

14

1) Petitioner’s motion to vacate a judgment be DISREGARDED

Recommendations

15

except as supplemental opposition to Respondent’s motion to

16

dismiss the petition; and

17
18
19
20

2) Respondent’s motion to dismiss the petition be GRANTED;
and
3) The petition be DISMISSED with prejudice as untimely
filed; and

21

4) Judgment be ENTERED for Respondent; and

22

5) The Court DECLINE to issue a certificate of

23

appealability.

24

These findings and recommendations are submitted to the

25

United States District Court Judge assigned to the case, pursuant

26

to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of

27

the Local Rules of Practice for the United States District Court,

28

Eastern District of California.

Within thirty (30) days after
41

1

being served with a copy, any party may file written objections

2

with the Court and serve a copy on all parties.

3

should be captioned “Objections to Magistrate Judge’s Findings

4

and Recommendations.”

5

and filed within fourteen (14) days (plus three (3) days if

6

served by mail) after service of the objections.

7

then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.

8

§ 636 (b)(1)(C).

9

objections within the specified time may waive the right to

Such a document

Replies to the objections shall be served

The Court will

The parties are advised that failure to file

10

appeal the District Court’s order.

11

1153 (9th Cir. 1991).

Martinez v. Ylst, 951 F.2d

12
13

IT IS SO ORDERED.

14

Dated:
ie14hj

January 9, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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