Galafate v. Adams
Filing
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FINDINGS and RECOMMENDATIONS to grant 12 MOTION to DISMISS and dismiss the 1 Petition as time-barred signed by Magistrate Judge Michael J. Seng on 12/29/2017. Referred to Judge Anthony W. Ishii; Objections to F&R due by 2/1/2018. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LENY PETERSEN GALAFATE,
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Petitioner,
v.
Case No. 1:17-cv-00708-AWI-MJS (HC)
FINDINGS AND RECOMMENDATIONS
(1) TO GRANT RESPONDENT’S MOTION TO
DISMISS AND (2) TO DISMISS THE
PETITION AS TIME-BARRED
DARRYL ADAMS, Warden
(ECF NOS. 1, 12)
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Respondent.
THIRTY (30) DAY OBJECTION DEADLINE
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
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corpus under 28 U.S.C. § 2254. Respondent is represented by Justain Paul Riley of the
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Office of the California Attorney General.
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Before the Court is Respondent‘s motion to dismiss the petition as time-barred.
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(ECF No. 12.) It is beyond dispute that the petition was not timely filed under 28 U.S.C.
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§ 2244(d). The only question before the Court is whether Petitioner is entitled to an
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equitable exception to the statute of limitations on the basis of actual innocence. For the
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reasons stated below, the Court concludes that she is not. Accordingly, the undersigned
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will recommend the petition be dismissed.
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I.
Factual Background
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The following facts are taken from the Fifth District Court of Appeal‘s April 8, 1991
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opinion. They are not meaningfully disputed, except as discussed below in reference to
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the relatively recent post-trial declarations of Petitioner and her ex-husband. See 28
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U.S.C. § 2254(e)(1) (state court factual findings are presumed correct, unless rebutted
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by clear and convincing evidence).
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In the mid-1980‘s, defendants Roman Galafate and his wife,
Leny Petersen Galafate, resided with family members in
Delano, California. Roman Galafate was an agent for Midland
National Life Insurance Company and had an office in the
MGM Professional Building at 1201 Jefferson Street in
Delano. On September 9, 1985, defendants filed a voluntary
petition in the United States Bankruptcy Court for the Eastern
District of California. The court discharged their debts
pursuant to chapter 7 of the Federal Bankruptcy Code on
February 5, 1986.
Defendants maintained close ties with members of their
extended family, including Reny and Violeta Petersen. Reny
Petersen was Leny‘s uncle, her father‘s brother. Defendant
Leny Galafate regularly visited her aunt by marriage, Violeta
Petersen, and was godmother of Reny and Violeta‘s minor
son, Chris. Roman Galafate wrote insurance policies for
various family members, including a $75,000 life insurance
policy on Violeta Petersen in October 1985. That policy
named her husband, Reny Petersen, as the beneficiary of the
proceeds.
Approximately two weeks after the defendants received their
discharge in bankruptcy, Roman Galafate processed an
application for a $250,000 insurance policy on the life of
Violeta Petersen. The application was dated February 18,
1986, and named ―Leny Petersen‖ as beneficiary of the
proceeds. ―Leny Petersen‖ was defendant Leny Galafate‘s
maiden name. Leny signed her aunt‘s name on the policy
application. Although Violeta‘s address was 20857 Francis
Drive in Richgrove (Tulare County), the application bore
Roman Galafate‘s post office box number in Delano.
Sometime prior to Sunday, February 23, 1986, Roman
Galafate purchased an $83 money order from the Miracle
Market at 1643 Cecil Avenue in Delano. Store manager Pete
Medrano required customers to pay cash for money orders
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but did not require presentation of identification. According to
Medrano, the store personnel generally filled in the amount of
the money order and the customer completed the rest of the
information. Although Roman admitted purchasing the $83
money order, the face of the instrument indicated Violeta
Petersen purchased it on February 18, 1986.
Roman Galafate transmitted the completed application and
money order to Midland National Life Insurance Company in
Sioux Falls, South Dakota. Midland received the documents
sometime between 6:15 a.m. on Friday, February 21, 1986,
and 6:15 a.m. on Monday, February 24, 1986.[FN3]
[FN3: The Sioux Falls office was not open on
Saturday, February 22, 1986, or Sunday, February 23,
1986. The parties stipulated there was mail pickup at
6:15 a.m. on Friday, February 21, and the next pickup
was at 6:15 a.m. on Monday, February 24. The
insurance application was collected during the latter
pickup. United States Postal Service Supervisor
Martoria Sherman testified it would take a minimum of
two days, and probably three, for a letter mailed in
Delano to reach Sioux Falls.]
Reny Petersen last saw his 34-year-old wife, Violeta, at their
Richgrove home on Saturday morning, February 22, 1986.
Violeta had received her paycheck the day before and was
carrying $500 in cash. She planned to pay bills that day.
At 6:50 p.m. that day, Martha Salinas was traveling
northbound on Browning Road from McFarland to Delano. At
the intersection of Browning and Pond Roads, Salinas saw a
large car speeding westbound on Pond. The car went
through a stop sign, swayed, and almost crashed into
Salinas‘s car. Salinas saw the male driver pull the car over
and park. A few minutes after 7 p.m., Salinas returned by the
same route and saw a body in the roadway in the vicinity of
where the car had been parked. The body had not been there
earlier. Salinas stayed at the scene until law enforcement
officers arrived. Kern County sheriff‘s deputies were
dispatched to the scene and found the body of a fully clothed
female lying on her back. A blueish-colored tongue protruded
from the victim‘s mouth. The victim‘s sweater was pulled up
over her head and a distinctive bruise surrounded her neck.
Officers found a purse, jewelry, and several bank books
scattered about the victim as well as loose fibers on her face
and body. A wallet contained a driver‘s license in the name of
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Violeta Bacena Petersen. The officers did not find any money
in either the purse or the wallet.
That same evening, Reny Petersen stopped by his father‘s
grave on his way home from work. Sometime after 6 p.m.
Reny realized Violeta was gone. After unsuccessfully
attempting to locate her, Reny filed a missing person report
with Tulare County Sheriff‘s Detective Charles Denchfield
around 10:30 p.m. Denchfield relayed the information to his
communications unit, the Delano Police Department, and the
Kern County Sheriff‘s Department. Around midnight, Kern
County sheriff‘s detectives advised Reny his wife was dead.
Detective Sergeant Craig Fraley took carpet samples from
Reny Petersen‘s home several days later.
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On February 24, 1986, Dr. Armand L. Dollinger, a forensic
pathologist, performed an autopsy on the five-foot-three-inch,
one-hundred-and-two-pound body of Violeta Petersen.
Dollinger concluded Violeta died by asphyxiation caused by
ligature strangulation sometime prior to 2 p.m. on February
22, 1986. The ligature could have been a rope or cord. The
particularly prominent mark of the neck wound demonstrated
considerable force was used to hold the ligature. Dollinger
testified death by ligature strangulation would have taken
several minutes. The right hyoid, a small bone in the throat,
was fractured. Aside from the wounds to the neck, the victim
had bruises on the back of the head, over the left eye, on the
cheeks, and on the left wrist. The livor mortis (color from
blood settling to the lower portion of the body), facial
petechial hemorrhaging (breakage of small vessels), and
flattening of the face showed the victim had been face down
for at least two to six hours after death. James A. Malouf, a
Kern County coroner‘s investigator, concluded the victim
must have been killed elsewhere, placed face down for a
time, and later left face up on Browning Road. The victim‘s
pants were wet and her panty shield was soaked. However,
there was no evidence of sexual assault. Dollinger said
urination is a frequent occurrence during death by ligature
strangulation.
During the autopsy, Kern County Criminalist Bernadetta
Rickard collected trace evidence and took biological samples
for analysis. She recovered fibers from the victim‘s neck
wounds, body sheet, mouth, and hair. Rickard testified these
fibers were collected before the body was disrobed. However,
the fiber taken from the victim‘s mouth was recovered much
later than the ones taken from the body sheet. Further, the
envelope containing the mouth fiber did not specifically state
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it had been recovered before the disrobing of the victim. The
recovered fibers were various colors, including green, red,
black, and multicolored. There were several red fibers but no
green fibers in the neck wounds. There were one or two
green fibers, and various multi-colored fibers in the mouth
and on the tongue. Rickard found one green fiber on a lock of
hair, another green fiber on another portion of the victim‘s
hair, and at least two green fibers on the body sheet. Overall,
the fibers were primarily green.
On the date of the autopsy, Roman Galafate III telephoned
Midland National Life Insurance Company in Sioux Falls and
reported Violeta Petersen had died on February 22. Roman
requested instructions on completing a claim and also
inquired whether Midland had received the victim‘s most
recent policy application. Roman told Midland personnel the
application had been filled out the preceding Tuesday or
Wednesday. He reported there were two policies—one for
$75,000 and one for $250,000. Roman said the victim had
been so pleased with the first policy that she wanted a
second policy. Donald Lemke, Midland Vice President of
Claims, testified no policy was ever issued on the $250,000
application.
On February 26, 1986, Kern County sheriff‘s officers found
Violeta‘s brown Honda Civic at the Sundance Inn, 405 Cecil
Avenue, in Delano. The vehicle had been parked at the motel
for a couple of days. The driver‘s seat had been adjusted to
accommodate a driver taller than Violeta. The car was very
clean and even the decedent‘s fingerprints could not be found
on the vehicle. Law enforcement personnel unsuccessfully
attempted to identify a print on the sun visor.
Sergeant Fraley took carpet samples from the motel. On
March 18, 1986, Kern County Criminalist Gregory Laskowski
conducted a fiber analysis on the material recovered from the
victim‘s body. Laskowski concluded those fibers did not come
from the carpet in the Petersen residence or the Sundance
Inn.
On March 18, 1986, Roman telephoned Donald Lemke at the
Midland office in Sioux Falls, and advised that Leny Petersen
was his wife. Lemke questioned why the victim used the
name of Petersen instead of Galafate in the beneficiary
designation. Lemke noted Leny used the name Leny P.
Galafate when she applied for status as an authorized agent
with Midland on October 22, 1985. Roman promised to send
Lemke information on the usage of Leny‘s maiden name. On
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March 24, 1986, Lemke received a letter dated March 18,
1986, from Roman. However, the letter did not explain why
the name Leny Petersen was used in the beneficiary
designation. Lemke sent Roman a letter dated April 1, 1986,
explaining what needed to be done to submit a claim
regarding the $250,000 policy application. On April 7, 1986,
Midland received a $250,000 claim dated April 4, 1986, and
signed ―L. Petersen.‖
Earlier in March 1986, Midland retained Donald Lake of
Equifax Services to investigate the questionable claim. Lake
obtained a statement from Leny Galafate on April 8, 1986.
Leny said she learned of Violeta‘s death when her uncle
Reny telephoned her late in the evening of February 22 or
early morning of February 23. On April 14, 1986, Lake
telephoned Kern County Sheriff‘s Detective Craig Fraley, the
primary investigator assigned to the Violeta Petersen
homicide case. Fraley immediately telephoned Donald Lemke
in South Dakota and obtained several documents, including
applications for insurance policies on Violeta‘s life.
On April 18, 1986, Donald Lake interviewed Roman in his
Delano office and obtained a signed statement from him.
Roman said Violeta took out a $75,000 insurance policy in
October 1985 and designated her husband, Reny, as the
beneficiary. Roman said Violeta decided to purchase a
second, larger policy after making a number of visits to his
office. Violeta also mentioned she was considering changing
the beneficiary on the $75,000 policy. Violeta frequently
visited her niece, Leny, at Roman‘s insurance office. During
these Friday visits, Violeta often spoke with Roman about
acquiring another policy.[FN4] However, it was not until a
week before her death that Violeta actually applied for the
policy. Roman told Lake he and Violeta were alone when the
policy application was completed. Violeta‘s son, Chris, was in
another room of the office suite until the ―tail end‖ of the
transaction. Roman was under the impression Violeta did not
want Reny to know about the second policy. Roman said
Violeta gave him cash to pay the premium because her
checkbook was ―kind of fouled up.‖ Roman claimed he had
taken the money to Presidio Savings and Loan in Delano on
Saturday, February 15, 1986, but it was closed. He obtained
a money order from the bank on Monday, February 17, 1986,
and mailed the money order and application to Midland on
the same day.
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[FN4: Reny Petersen stated his wife had not been
interested in insurance at all because she believed it
was like a curse.]
On May 8, 1986, Sergeant Fraley conducted a consensual
interview of Roman Galafate at his Delano office. Roman
claimed he had last seen Violeta on the evening of Friday,
February 21, 1986, at his insurance office. Roman admitted
selling a $75,000 insurance policy to Violeta in 1985. A short
time later, Violeta ―started questioning‖ Roman about a
$250,000 life insurance policy. Roman said Violeta also
―attempted to change‖ the primary beneficiary on the $75,000
policy from her husband, Reny, to her niece, defendant Leny
Galafate. Roman further claimed he sold Violeta the
$250,000 insurance policy one week before her death and
she had signed the application for it. Violeta gave Roman
about $80 in cash so he could purchase a money order for
the policy. Roman acknowledged sending the application to
Midland National Life Insurance Company. Roman
maintained Violeta wanted him to use a Richgrove post office
box number as a return address. However, the application
bore defendant Roman Galafate‘s post office box number.
Roman informed Fraley about the pending insurance claim
investigation and said he did not expect any payment to be
made on the $250,000 policy application.
On June 2, 1986, Roman called Lemke for an update on the
claims investigation. Lemke advised the insurance company
was concerned about the authenticity of Violeta Petersen‘s
signature on the $250,000 policy application. Roman said,
―Right, well, you‘ll [sic] be sending a letter on that.‖ On June
10, 1986, Lemke wrote Roman and repeated his concern
about the signature on the policy application. Roman
responded with a letter on his personal stationery, stating:
―As addressed in your letter of June 10, 1986, which I have
enclosed a copy, I will try to explain any unanswered
questions you have directed to me.‖ According to Roman,
Violeta thought the $75,000 policy had lapsed and that Leny
would apply for guardianship of Chris in the event of Violeta‘s
demise. Roman indicated Leny had orally agreed to care for
Violeta‘s child. Roman‘s letter did not answer Lemke‘s
questions about the signature on the $250,000 policy
application.
On June 11, 1986, Midland mailed Reny Petersen a check for
$76,362.50, representing the proceeds from Violeta‘s 1985
policy plus interest. Before Reny cashed the check,
defendants engaged him in a discussion about the insurance
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money. Both defendants initially said he could not ―get
anything because the paper has been lapsed.‖ Roman told
Reny he would be in trouble because Violeta‘s policy had
lapsed. Leny told her uncle he could not keep the money and
said he should return it. Leny said she would accompany him
to the bank so he could return the funds.
On June 23, 1986, Reny deposited $65,962.50 of the
insurance money at Presidio Savings and Loan in Delano.
Reny also put some of the insurance money in his Bank of
America account. On June 25, 1986, Leny drove her uncle to
the Delano branch of Bank of America and he withdrew
$9,000 in cash from his account. Reny handed over all of this
money to Leny while they were still in the bank. Reny also
gave Leny another $1,000 in cash he had previously retained
when he first deposited the insurance check.
On July 8, 1986, Leny and Reny went to the Presidio Savings
and Loan and Reny signed a document in Leny‘s presence.
Reny believed that document would return the insurance
proceeds to Midland National. In fact, Presidio issued Reny a
cashier‘s check in the sum of $66,000. On the same date,
someone deposited $68,330.60 into an account at the main
branch of Santa Barbara Savings in Bakersfield. The account
was in the name of ―Roman Galafate Insurance and Financial
Services Center.‖ Part of that deposit consisted of a $66,000
cashier‘s check issued by Presidio Savings to Reny B.
Petersen. Santa Barbara Savings Supervisor Raul Holquin
could not identify the person who deposited the cashier‘s
check. However, Santa Barbara Savings‘ policy prohibited a
third person from making a deposit on someone else‘s
account. On the same date, someone withdrew $61,180 from
Roman Galafate‘s account. Midland National never received
any money back from the $75,000 Petersen claim.
On July 25, 1986, Donald Lemke wrote defendants and
denied the $250,000 claim. The company did not issue a
policy in response to the application.
On November 13, 1986, Detective Fraley interviewed Leny at
her home after advising her of her Miranda[FN5] rights.
Roman was present during a portion of the interview. Leny
claimed Violeta was going to go shopping with Leny‘s mother
on Saturday, February 22, 1986. Three times during the
course of the interview, Leny denied signing the insurance
application.[FN6] Leny provided Fraley with four handwriting
exemplars.
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[FN5: Miranda v. Arizona, (1966) 384 U.S. 436.]
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[FN6: The Court cautioned the jury it could only
consider Roman‘s statements to Fraley against
Roman and Leny‘s statements to Fraley against Leny.]
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Fraley submitted Leny‘s handwriting exemplars to Kern
County Deputy Sheriff Cheryl Gottesman, an examiner of
questioned documents. Gottesman examined Leny‘s
exemplars, the signature on the $250,000 application, and
the signatures on the credit cards issued to Violeta Petersen.
Magnification of the signature on the application disclosed the
letters had been carefully and individually formed, and later
linked together. The style of subsequently connecting
separate letters suggested a forgery. On March 18, 1987,
Gottesman reported the person who signed Violeta‘s name
on the application was not the same person who had signed
the credit cards. She further reported there was a strong
similarity between the signature on the application and Leny
Galafate‘s handwriting. However, Leny‘s exemplars were
basically printed and Gottesman lacked sufficient cursive
writing to make a positive comparison.
On September 23, 1987, Leny provided another handwriting
exemplar for Gottesman‘s examination. In a report dated
September 29, 1987, Gottesman concluded the person who
completed and signed the two sets of exemplars with the
name Leny P. Galafate was the same person who had signed
the name Violeta Petersen on the insurance application.
Gottesman explained Leny‘s signature was consistently
raised above the signature line on the exemplars in the same
fashion as the signature on the insurance application.
On January 12, 1988, Christopher Hillis, an investigator for
the Kern County District Attorney‘s office, seized carpet
samples from Roman‘s insurance office.[FN7] Hillis also
noticed a large stain on the green carpeting. He returned later
to cut out the stained carpet section for a urine analysis. On
February 11, 1988, Hillis delivered the carpet samples from
Roman‘s office to Laskowski. Laskowski determined the
green carpeting in Roman‘s insurance office was
―microscopically and chemically consistent‖ with the green
fibers found on Violeta‘s body. Laskowski testified it was
impossible to determine whether the green fibers came from
the carpet in Roman‘s office because carpeting is
manufactured in bulk and is widely distributed. Subsequent
tests on the stained section of the carpet neither revealed nor
ruled out the presence of urine.
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[FN7: In 1986, Criminalist Gregory Laskowski
concluded neither the carpet in the Petersen home nor
the carpet at the Sundance Inn was similar to the
green fibers removed from Violeta‘s body. No carpet
samples were taken from Roman‘s office until 1988.
The green carpeting in Roman‘s office had been
installed prior to February 1986.]
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On cross-examination, Laskowski conceded there are several
types of nylon fiber and his test did not show whether or not
the fibers recovered from the body were of the same type of
nylon as that contained in Roman‘s office carpet. Assuming
the fibers were recovered from the victim‘s back, mouth, and
hair, the criminalist concluded the victim had ―total body
contact‖ with the carpet. In other words, she either had been
wrapped up in the carpet or had been laying upon it.
However, there was no evidence any of the fibers were
recovered from the victim‘s back. Laskowski also testified
some of the mouth fibers could have come from the victim‘s
clothing.
On March 9, 1988, Investigator Hillis spoke with Leny
Galafate on the telephone to ―give her an opportunity to clear
up some inconsistencies,‖ since she was suspected of
forgery. The next day, Hillis and Assistant Chief Investigator
Dwight Pendleton contacted Mrs. Galafate at her in-laws‘
home in Earlimart and asked her to come to the Delano
police station for an interview. Leny Galafate requested an
opportunity to contact her attorney, Heberto Sala of
Bakersfield. She eventually accompanied the investigators to
the police station after they allegedly threatened to put her
children in a shelter. At the station, Leny acknowledged to
Hillis she had signed Violeta Petersen‘s name on the
insurance application four days before Violeta‘s death. Leny
claimed Violeta asked her to sign the document because her
child was ―acting up.‖ Although Roman was present at the
time, his back was turned and he did not know Leny had
signed the document.
Investigator Hillis testified the Kern County District Attorney
charged defendants with the murder of Violeta Petersen on
March 23, 1988.
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Defense
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Family members attested to the close relationship between
the Galafates and the Petersens. Leny Galafate was the
godmother of the Petersen‘s son, Chris. Defense counsel
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argued the jury would have to believe Leny conspired to kill a
friend and family member who trusted her. Counsel claimed
Violeta sought a larger policy so Leny would be able to care
for Chris.
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Dr. Dollinger testified the victim died sometime prior to 2 p.m.
on February 22, 1986. Leny‘s sister, Sol Petersen, lived with
the defendants and testified they were at home the entire day
of February 22, 1986. She said they slept in until noon, took
showers and ate lunch, and then stayed at the house to
watch television and do housework. Leny‘s younger sister,
Joey Petersen, testified Leny felt ill after Violeta died.
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Defense counsel proffered alternative theories of the case
during closing argument. First, counsel suggested the green
fibers on Violeta‘s body might have come from clothes she
regularly wore to Roman‘s insurance office. Second, counsel
suggested a robbery for $500 as a possible motive for the
crime. Third, counsel also suggested some sort of sordid
affair led to Violeta‘s death. Counsel pointed out Violeta‘s car
was discovered at a motel, her wedding band was found at
home after the murder, and she was planning an extended
trip to the Philippines without her husband. Fourth, counsel
pointed out it made no sense for the Galafates to kill Violeta
before Midland National received the policy application in
Sioux Falls. Finally, counsel argued it did not make sense to
kill Violeta in the insurance office because the MGM
Professional Building was located near the Delano police and
fire stations.
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Defense counsel also introduced evidence of defendants‘
good and kind character. Several defense witnesses testified
Roman and Leny Galafate were not violent people. The
defendants did not testify on their own behalf.
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(Lodged Doc. 2.)
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II.
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Procedural History
On January 23, 1989, Petitioner was convicted of first degree murder for financial
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gain and conspiracy to commit murder for financial gain. She was sentenced to life
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without the possibility of parole on the murder count and twenty-five years to life on the
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conspiracy count. (Lodged Docs. 1-2.)
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Petitioner appealed. On April 8, 1991, the California Court of Appeal for the Fifth
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Appellate District affirmed. (Lodged Doc. 2.) Petitioner filed a petition for review with the
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California Supreme Court, which was denied on July 11, 1991. (Lodged Docs. 3-4.)
Petitioner proceeded to file eight post-conviction challenges, as follows1:
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1.
Kern County Superior Court
Filed: April 17, 1997;
Denied: May 8, 1997;
2.
Kern County Superior Court
Filed: July 15, 2013;
Denied: October 23, 2013;
3.
California Court of Appeal, Fifth Appellate District
Filed: January 8, 2014;
Denied: February 14, 2014;
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Kern County Superior Court
Filed: February 26, 2015;
Denied: June 2, 2015.
5.
California Court of Appeal, Fifth Appellate District
Filed: July 13, 2015
Denied: October 23, 2015
6.
California Court of Appeal, Fifth Appellate District
Filed: March 10, 2016
Denied: May 27, 2016
7.
California Court of Appeal, Fifth Appellate District
Filed: August 23, 2016
Denied: November 23, 2016
8.
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California Supreme Court
Filed: January 23, 2017
Denied: March 1, 2017
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(Lodged Docs. 5-20.)
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A.
Fourth Petition
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Beginning with her fourth post-conviction challenge, filed February 26, 2015,
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Petitioner began to raise the issue presented on the instant petition, i.e., her actual
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innocence of the offense as demonstrated by a confession authored by her ex-husband
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1
Under the mailbox rule, the Court deems petitions filed on the date Petitioner handed a petition to prison
authorities for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988); Campbell v. Henry, 614 F.3d 1056 (9th
Cir. 2010); see also Rule 3(d) of the Rules Governing Section 2254 Cases.
12
1
and co-defendant, Roman Galafate III. (Lodged Doc. 11.) In a December 12, 2014,
2
declaration, Roman2 confessed, reportedly for the first time, that he carried out the
3
murder. Roman explained that the murder was not pre-planned and had occurred
4
accidentally and on the spur of the moment during an argument. He stated that
5
Petitioner had no knowledge of or involvement in the murder. (Id.) Petitioner also
6
presented her own declaration, denying any knowledge of or involvement in the murder.
7
(Id.)
8
The Superior Court denied the petition as follows:
9
Petitioner contends that given the recent extrajudicial
confession of sole culpability by her ex-husband, she is
innocent. She divorced Roman in 2009. She contends that
the confession declaration signed by Roman Galafate on
December 12, 2014 is newly discovered evidence which
fundamentally undermines the prosecution‘s case. She
further asserts in her own declaration that had she known of
Roman‘s plans, she would have called the police or did what
she could to stop the murder. Roman‘s declaration was as
shocking to her as the death of her aunt. It is due to her exhusband‘s actions that she has been unjustly languishing in
prison for all this time. All this time she did not know who
murdered her aunt on January 22, 1986, and like her exhusband, asserted her innocence. She did not testify at the
trial upon the advice of counsel.
10
11
12
13
14
15
16
17
18
....
19
Generally, newly discovered evidence is not cognizable in
habeas corpus unless it fundamentally undermines the
prosecution‘s evidence, not merely casts doubt upon it. In re
Lindley (1947) 29 Cal.2d 709, 723, 725, People v. Ebaniz
(2009) 175 Cal.App.4th 142. To prevail in a claim of
innocence, petitioner must also show that the newly
discovered evidence not only fundamentally undermines the
prosecution‘s case, but also demonstrates reduced
culpability. In re Hall (1981) 30 Cal.3d 408, 410, 424, In re
Clark (1993) 5 Cal.4th 750, 766.
20
21
22
23
24
25
26
27
28
2
Because Petitioner and her husband share the same last name, his first name is used herein for
purposes of brevity and clarity.
13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
There is a cogent argument that Mr. Galafate‘s role in the
crime is not newly discovered evidence since it existed as of
on or before January 22, 1986. The confession however did
not become available until December 18, 2014. The question
is as to the reliability of the confession. Extrajudicial
confessions such as we have here are inherently
untrustworthy because there is no way to cross-examine the
confessor. Bruton v. U.S. (1968) 391 U.S. 123, People v.
Anderson (1987) 43 Cal.3d 1104, 1122. The same reliability
problems exist with recantation of witnesses. In re Clark
(1993) 5 Cal.4th 750, 766, Cotton v. Shriro (9th Cir. 2009)
360 Fed. Appx. 779.
Mr. Galafate‘s confession is unreliable since it is selfserving. He has nothing to lose by confessing since he
cannot suffer any greater punishment. Though confessing his
involvement in Violeta Peterson‘s [sic] murder may clear his
conscience, it does very little if anything to clear petitioner of
culpability. It does not exonerate her because there is still an
abundance of circumstantial evidence linking petitioner to her
aunt‘s murder. Where such circumstantial evidence exists, a
confession by a co-defendant is not enough to sustain a
claim of innocence. People v. Homick (2012) 55 Cal.4th 816,
850, People v. Hajek (2014) 58 Cal.4th 1144, 1173.
Mrs. Peterson [sic] was strangled without any excuse
of justification. Petitioner assisted her husband in taking out a
$250,000 life insurance policy on her aunt‘s life by forging her
signature. Petitioner defrauded her uncle of $75,000.00 life
insurance proceeds by false pretenses, as Rene Peterson
[sic] was in fact eligible for those funds. Instead, petitioner
conspired to and hand knowledge that her husband Roman
converted those proceeds by placing them into the bank to
inure to the benefit of her husband and herself. The fact that
Midland Life Insurance Co. never paid out on the $250,000
life insurance policy is of no consequence. The circumstantial
evidence establishes that petitioner and her husband
conspired to commit murder and did in fact murder Violeta
Peterson [sic] for the life insurance proceeds. Though
Petitioner may have played a lesser role in the actual murder,
this does not absolve her of culpability. She had knowledge
of her husband‘s acts, and did nothing about it believing that
the life insurance policies would take care of their financial
problems after previously filing for bankruptcy in October
1985.
Petitioner‘s declaration is also self-serving in that it
virtually mirrors that of her ex-husband. It mentions nothing
14
1
about forging the life insurance policy and deposit of funds
which did not belong to the couple in their bank account. All
these above-mentioned factors along with the circumstantial
evidence not only provide a motive to murder Violeta
Peterson [sic] but to also link petitioner to the murder. . . .
2
3
4
5
6
7
(Lodged Doc. 12.)
B.
Fifth Petition
Petitioner presented these same arguments and declarations to the Fifth District
Court of Appeal on July 13, 2015. (Lodged Doc. 13.) The Court of Appeal denied the
8
petition without prejudice on the ground that the declarations ―are on information and
9
belief and, thus, ‗were devoid of any evidentiary value.‘‖ (Lodged Doc. 14 (citation
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
omitted)).
C.
Sixth Petition
On March 10, 2016, Petitioner returned to the Fifth District Court of Appeal with
revised declarations. (Lodged Doc. 15.) The substantive facts contained in the
declarations were unchanged from the prior versions. The Court of Appeal again denied
the petition without prejudice, noting the following:
There are three aspects of the declaration of Roman Galafate
(Declaration) which undermine its credibility
First, the Declaration asserts that the victim was killed by
strangling her with her sweater. This assertion is inconsistent
with the type of wound described in the nonpublished
appellate opinion in People v. Galafate (Apr. 8, 1991,
F012067) (Opinion), which could have been made with ―a
rope or cord.‖
Second, the Opinion also states that the strangulation
required ―considerable force‖ that had to be applied for
―several minutes,‖ which supports an inference that the killing
was intentional contrary to the assertions in the Declaration.
Third, the Declaration also does not mention or explain the
other injuries to the victim.
26
27
28
More importantly, the Declaration does not undermine the
facts linking petitioner to the killing. (Hardy, supra, 41 Cal.4th
at pp. 1016-1018.) The Opinion notes that petitioner
15
confessed that she signed the victim‘s name on an insurance
application for $250,000 four days before the victim‘s death
and petitioner was the beneficiary. On the application,
petitioner signed her name, ―Leny Petersen,‖ instead of her
married name, Leny Galafate, which creates an inference
that there was an intent to mislead the insurance company.
Roman was asked by an insurance agent to explain the
discrepancy in petitioner‘s name on the application. He did
not provide an explanation at that time or in his Declaration.
In April 1986, the insurance company received a claim for
$250,000, which was signed, ―‘L. Petersen.‘‖ The Declaration
does not attempt to explain petitioner‘s conduct in submitting
the claim or persuading the victim‘s husband to give her the
insurance proceeds from the victim‘s life insurance policy.
1
2
3
4
5
6
7
8
9
(Lodged Doc. 16.)
10
D.
Seventh Petition
11
On August 23, 2016, Petitioner returned again to the Fifth District Court of Appeal
12
with new declarations. (Lodged Doc. 17.) In her own declaration, Petitioner explained
13
that her actions in relation to the two life insurance policies were undertaken at her
14
15
husband‘s direction and control. Roman declared likewise that he directed Petitioner in
this conduct, through manipulation, dominion, and Petitioner‘s obedience. Both declared
16
that, in undertaking these actions, Petitioner was unaware that Roman had any intent to
17
commit murder. The petition was summarily denied. (Lodged Doc. 18.)
18
E.
19
20
Eighth Petition
On January 23, 2017, Petitioner presented her claim of actual innocence –
including the declarations presented with her seventh petition – to the California
21
Supreme Court. (Lodged Doc. 19.) The petition was summarily denied. (Lodged Doc.
22
20.)
23
F.
Federal Petition
24
Petitioner filed the instant petition on May 21, 2017. (ECF No. 1.) On August 29,
25
2017, Respondent filed a motion to dismiss. (ECF No. 12.) Petitioner filed no opposition
26
and the time for doing so has passed. The matter is submitted.
27
28
16
1
III.
Procedural Grounds for Motion to Dismiss
2
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to
3
dismiss a petition if it ―plainly appears from the petition and any attached exhibits that the
4
petitioner is not entitled to relief in the district court . . . .‖ Rule 4 of the Rules Governing
5
Section 2254 Cases.
6
The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an
7
answer if the motion attacks the pleadings for failing to exhaust state remedies or being
8
in violation of the state‘s procedural rules. See, e.g., O‘Bremski v. Maass, 915 F.2d 418,
9
420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to
10
exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using
11
Rule 4 as procedural grounds to review motion to dismiss for state procedural default);
12
Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a
13
respondent can file a motion to dismiss after the court orders a response, and the Court
14
should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 &
15
n. 12.
16
In this case, Respondent's motion to dismiss is based on a violation of the one-
17
year limitations period. 28 U.S.C. § 2244(d)(1). Because Respondent's motion to dismiss
18
is similar in procedural standing to a motion to dismiss for failure to exhaust state
19
remedies or for state procedural default and Respondent has not yet filed a formal
20
answer, the Court will review Respondent‘s motion to dismiss pursuant to its authority
21
under Rule 4.
22
IV.
Discussion
23
A.
24
The instant petition was filed after April 24, 1996 and is subject to the
25
Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter ―AEDPA‖). AEDPA
26
imposes various requirements on all petitions for writ of habeas corpus filed after the
27
date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997);
Commencement of Limitations Period
28
17
1
Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).
2
AEDPA imposes a one-year period of limitation on petitioners seeking to file a
3
federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244,
4
subdivision (d) reads:
5
(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 –
6
7
(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;
8
9
(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;
10
11
(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
12
13
14
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
15
16
(2) The time during which a properly filed application for State postconviction 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.
17
18
28 U.S.C. § 2244(d).
19
Under § 2244(d)(1)(A), the limitations period begins running on the date that the
20
21
22
petitioner‘s direct review became final or the date of the expiration of the time for seeking
such review.3 Here, however, Petitioner‘s conviction became final prior to AEDPA‘s
enactment. Accordingly, Petitioner had a one-year ―grace period‖ following AEDPA‘s
23
April 24, 1996 enactment to file her federal petition. Absent tolling, her petition was due
24
one year later, on April 24, 1997. Malcom v. Payne, 281 F.3d 951, 955 (9th Cir. 2002);
25
Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
26
27
28
3
The limitations period may begin running later under certain specified circumstances, none of which are
applicable here. 28 U.S.C. § 2244(d)(1)(B)-(D).
18
1
B.
2
28 U.S.C. § 2244(d)(2) states that the ―time during which a properly filed
3
application for State post-conviction or other collateral review with respect to the
4
pertinent judgment or claim is pending shall not be counted toward‖ the one year
5
limitation period. Here, Petitioner filed one state post-conviction challenge during the
6
limitations period. She therefore is entitled to statutory tolling from the filing of her first
7
petition on April 17, 1997, to the disposition of that petition on May 8, 1997, for twenty-
8
two total days of tolling. See Tillema v. Long, 253 F.3d 494 (9th Cir.2001) (state petition
9
filed before limitations period begins to run tolls the limitations period); Pace v.
10
DiGuglielmo, 544 U.S. 408, 410 (2005). This tolling extended the deadline for filing her
11
federal petition from April 24, 1997 to May 16, 1997.
Statutory Tolling
12
Petitioner did not file another State post-conviction challenge until July 15, 2013,
13
more than fifteen years later. Neither this petition, nor her subsequent petitions served to
14
toll the statute of limitations under § 2244(d)(2). Ferguson v. Palmer, 321 F.3d 820, 823
15
(9th Cir. 2003) (petitions filed after the limitations period expires do not toll the statute of
16
limitations); Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (same).
Petitioner‘s federal petition was due on or before May 16, 1997. It was filed May
17
18
21, 2017, more than twenty years too late.4
19
C.
20
―[A]ctual innocence, if proved, serves as a gateway through which a petitioner
21
may pass whether the impediment is a procedural bar . . . or . . . expiration of the statute
22
of limitations.‖ McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). Thus, ―a petitioner is not
23
barred by the AEDPA statute of limitations from filing an otherwise untimely habeas
24
petition if the petitioner makes a credible showing of ‗actual innocence‘ under Schlup v.
25
Delo.‖ Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011) (citing Schlup, 513 U.S. 298
26
(1995)). To pass through the ―Schlup gateway‖ a petitioner must present evidence of
Actual Innocence Exception to the Statute of Limitations
27
28
4
Petitioner has not presented any argument to suggest she is entitled to equitable tolling.
19
1
innocence so strong that ―it is more likely than not that no reasonable juror would have
2
convicted him in the light of the new evidence.‖ Schlup, 513 U.S. at 327; see also
3
McQuiggin, 569 U.S. at 384. ―[A] petitioner does not meet the threshold requirement
4
unless he persuades the district court that, in light of the new evidence, no juror, acting
5
reasonably, would have voted to find him guilty beyond a reasonable doubt.‖ McQuiggin,
6
569 U.S. at 386 (citing Schlup, 513 U.S. at 329); see also House v. Bell, 547 U.S. 518,
7
538 (2006) (emphasizing that the Schlup standard is demanding and seldom met).
8
The petitioner must ―support his allegations of constitutional error with new
9
reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
10
accounts, or critical physical evidence—that was not presented at trial.‖ Schlup, 513 U.S.
11
at 324. In the few cases where a petitioner has qualified for an actual innocence
12
exception, the new evidence typically consisted of ―credible evidence that the petitioner
13
had a solid alibi for the time of the crime, numerous exonerating eyewitness accounts of
14
the crime, DNA evidence excluding the petitioner and identifying another potential
15
perpetrator, a credible confession by a likely suspect explaining that he had framed the
16
petitioner, and/or evidence contradicting the very premise of the prosecutor's case
17
against the petitioner.‖ Stidham v. Cate, Case No. 10-CV-0120-GAF, 2010 WL 5463795,
18
at *8 (C.D. Cal. Oct. 28, 2010) (collecting cases).
19
Here, Petitioner has brought a free-standing actual innocence claim but does not
20
expressly argue that her evidence is sufficient to allow her to pass through the ―Schlup
21
gateway‖ and to avail herself of an equitable exception to the statute of limitations.
22
Nonetheless, because this is the only apparent means by which the Court may consider
23
the petition, the Court will consider whether Petitioner has met the ―extremely high
24
hurdle‖ posed by Schlup. See Stewart v. Cate, 757 F.3d 929, 938 (9th Cir. 2014). The
25
Court concludes she has not.
26
The declaration submitted by Roman, Petitioner‘s ex-husband and co-defendant
27
is insufficiently credible, reliable, or trustworthy to persuade the Court that ―no juror,
28
20
1
acting reasonably, would have voted to find [Petitioner] guilty beyond a reasonable
2
doubt.‖ McQuiggin, 569 U.S. at 386. Roman is serving a life sentence and the
3
opportunities for him to challenge his sentence have long passed. He therefore has
4
nothing to lose by professing his exclusive role in the murder or lying about Petitioner‘s
5
participation. In other words, he may assume responsibility for the offense with no real
6
risk to his own liberty. Such confessions are regularly rejected as the basis for an actual
7
innocence finding unless combined with other credible evidence. See House, 547 U.S.
8
at 552 (confessions by inmates and suspects have less probative value than
9
confessions by ―eyewitnesses with no evident motive to lie‖); Morris v. Hill, No. 13–
10
55143, 2015 WL 1021120, at *2 (9th Cir. Mar. 10, 2015) (citing House and noting that ―a
11
credible confession by the actual perpetrator may affirmatively demonstrate actual
12
innocence,‖ but a felon serving a life sentence has ―nothing to lose by confessing‖);
13
Garmon v. Foulk, No. CV 14-0125 JCG, 2015 WL 1457629, at *6 (C.D. Cal. Mar. 30,
14
2015) (same); Smith v. Baldwin, 510 F.3d 1127, 1141 (9th Cir. 2007) (noting that
15
declarant was ―serving a life term in prison‖ and thus ―face[d] almost no consequences
16
for lying‖); Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (confession of alleged
17
perpetrator was considered as evidence in support of actual innocence claim where the
18
alleged perpetrator ―was opening himself to prosecution for capital murder and a
19
possible sentence of death‖ by confessing).
20
Furthermore, the only explanation given for Roman having waiting nearly twenty
21
years before confessing is that he wished to clear his conscience. This largely
22
unexplained delay casts some doubt on the reliability of the confession. See Cotton v.
23
Schriro, 360 F. App'x 779, 780 (9th Cir. 2009) (discounting recantation affidavits
24
presented two, six, and ten years after trial where there was ―[n]o satisfactory
25
explanation . . . given as to why‖ the affiants waited to come forward); Garmon, No. CV
26
14-0125 JCG, 2015 WL 1457629, at *6 (C.D. Cal. Mar. 30, 2015) (discrediting affidavit
27
identifying someone other than the petition as the shooter, where it was presented five
28
21
1
years after the incident and without explanation for the delay); Herrera v. Collins, 506
2
U.S. 390, 423 (1993) (O‘Connor, J., concurring) (affidavits made many years after trial,
3
purporting to exculpate a convicted prisoner through a new version of events, are ―not
4
uncommon‖ and ―are to be treated with a fair degree of skepticism‖).
5
Finally, the facts set forth in Roman‘s declaration do little to persuasively prove
6
Petitioner‘s factual innocence. As an initial matter, and as noted by the Fifth District
7
Court of Appeal, Roman‘s account of the murder is inconsistent with the trial evidence,
8
as summarized on appeal. (Lodged Doc. 16.) Cf. Carriger, 132 F.3d at 476 (confession
9
found credible where it contained details that could only have been known to participant
10
in the crime). Additionally, it is undisputed at this stage that the jury was presented with
11
substantial evidence to support Petitioner‘s involvement in murder for financial gain and
12
conspiracy to commit same. One week before the murder, Petitioner forged a life
13
insurance policy on behalf of the victim, which named Petitioner herself as the
14
beneficiary by way of her maiden name. Petitioner then collected on a separate life
15
insurance policy under the pretense that she was returning the proceeds from the
16
beneficiary (the victim‘s husband) to the insurance company. Instead, the proceeds were
17
deposited into Roman‘s account and then withdrawn in cash. While Petitioner now
18
attempts to explain these actions by claiming she was under the influence of her
19
husband, this explanation, even if true, does not constitute new evidence. Furthermore,
20
this explanation was not presented until after the state courts found Roman‘s prior
21
declarations insufficient. While the changes to Petitioner‘s and Roman‘s declarations are
22
not inconsistent with their prior declaration, the continuing evolution of Petitioner‘s claim
23
of actual innocence is clearly influenced by the deficiencies perceived by the state
24
courts.
25
26
These attempts to adapt the declarations to enhance their credibility has the
opposite effect.
27
28
22
1
In light of these factors, the Court cannot concude that ―all reasonable jurors
2
would choose to believe the proffered testimony.‖ Smith v. Baldwin, 510 F.3d at 1142 &
3
n.11 (en banc) (noting that petitioner must show that every reasonable juror would find it
4
more likely than not that the actual perpetrator ―at long last, has decided to tell the
5
truth.‖) Accordingly, Petitioner is not entitled to an equitable exception to the statute of
6
limitations, and her petition should be dismissed as time-barred.
7
V.
Conclusion and Recommendation
8
In light of the foregoing analysis, it is HEREBY RECOMMENDED that
9
Respondent‘s motion to be dismissed be granted and that the petition be dismissed as
10
time-barred.
11
The findings and recommendation are submitted to the United States District
12
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
13
thirty (30) days after being served with the findings and recommendation, any party may
14
file written objections with the Court and serve a copy on all parties. Such a document
15
should be captioned ―Objections to Magistrate Judge‘s Findings and Recommendations.‖
16
Any reply to the objections shall be served and filed within fourteen (14) days after
17
service of the objections. The parties are advised that failure to file objections within the
18
specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772
19
F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.
20
1991)).
21
22
23
24
IT IS SO ORDERED.
Dated:
December 29, 2017
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
25
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