Titus v. Madden

Filing 50

ORDER granting 45 Motion for Reconsideration; vacating 37 Order Adopting Findings and Recommendation and 38 Judgment; adopting 32 FINDINGS and RECOMMENDATION to dismiss 1 Petition for Writ of Habeas Corpus and directing Clerk of Court to enter Judgement signed by Chief Judge Lawrence J. O'Neill on 6/28/2019. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARVIN DOUGLAS TITUS,

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Petitioner,

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v.

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RAYMOND MADDEN, Warden,
Respondent.

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ORDER GRANTING MOTION FOR
RECONSIDERATION (Doc. 45)
ORDER VACATING ORDER ADOPTING
FINDINGS AND RECOMMENDATION
AND JUDGMENT (Docs. 37, 38)

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No. 1:17-cv-01258-LJO-SKO (HC)

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ORDER ADOPTING FINDINGS AND
RECOMMENDATION TO DISMISS THE
PETITION FOR WRIT OF HABEAS
CORPUS (Doc. 32)
ORDER DIRECTING CLERK OF COURT
TO ENTER JUDGMENT

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I.

Background
Petitioner Marvin Douglas Titus is a state prisoner proceeding with a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. The Court referred the matter to the Magistrate

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

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On June 8, 2018, the Magistrate Judge filed findings and recommendation in which she

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recommended that the Court dismiss the petition as untimely and decline to issue a certificate of

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appealability. The findings and recommendation, which were served on Petitioner, provided that

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objections could be served within thirty days. After receiving two extensions of time to file
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objections, Petitioner’s objections were due on August 13, 2018. (Doc. 36.) No objections were

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received by August 13, 2018. Subsequently, the Court adopted the Magistrate Judge’s findings

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and recommendation, judgment was entered, and the action was closed on August 16, 2018.

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(Docs. 37, 38.)

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On August 23, 2018, the Court received objections to the findings and recommendation,

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which were signed by Petitioner on August 16, 2018. (Doc. 39.) On September 13, 2018,

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Petitioner filed a notice of appeal that was processed to the Ninth Circuit on the same day. (Docs.

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41, 42.) On November 19, 2018, Petitioner filed a motion for reconsideration, requesting this

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Court vacate its judgment entered on August 16, 2018. (Doc. 45.) On January 30, 2019, the

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Court issued an order vacating the August 16, 2018, final judgment and entered a new final

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judgment. (Docs. 46, 47.) On June 27, 2019, the Ninth Circuit issued an order remanding the

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case to this Court for the limited purpose of enabling the Court to re-enter the January 30, 2019,

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order and final judgment. (Doc. 48.) This Court had determined that the notice of appeal did not

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divest the Court of jurisdiction to reconsider its order and judgment, however, the Ninth Circuit

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disagreed. Accordingly, the Court will re-enter the order and final judgment.

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II.

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Petitioner’s Motion for Reconsideration
Rule 60(b) of the Federal Rules of Civil Procedure provides that “[o]n motion and upon

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such terms as are just, the court may relieve a party . . . from a final judgment, order, or

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proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence that, with reasonable diligence could not have been discovered in

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time to move for a new trial under Rule 59(b); (3) fraud . . . , misrepresentation, or misconduct by

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an opposing party; . . . or (6) any other reason justifying relief from the operation of judgment.”

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Motions under Rule 60(b) "must be made within a reasonable time -- and for reasons (1), (2), and

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(3) no more than a year after the entry of the judgment or order or the date of the proceeding."

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Relief under Rule 60 “is to be used sparingly as an equitable remedy to prevent manifest

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injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v.

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Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted)

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(addressing reconsideration under Rules 60(b)(1)-(5)). The moving party “must demonstrate both
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injury and circumstances beyond his control . . . .” Id. (internal quotation marks and citation

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omitted).
“A motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence, committed

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clear error, or if there is an intervening change in the controlling law,” and it “may not be used to

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raise arguments or present evidence for the first time when they could reasonably have been

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raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

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F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in

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original).
In this case, the Court will grant Petitioner’s motion for reconsideration, vacate the

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judgment, and consider Petitioner’s objections to the findings and recommendation.

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III.

Petitioner Is Not Entitled to Equitable Tolling Based on Actual Innocence

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Here, the Court granted Respondent’s motion to dismiss, because the petition was

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untimely and Petitioner was not entitled to equitable tolling. Petitioner originally argued he was

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entitled to equitable tolling because trial counsel failed to send him his files from the trial in a

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timely manner. (Doc. 24 at 8.) Now, Petitioner states in his objections, for the first time, that he

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is entitled to equitable tolling because he is actually innocent. (Doc. 39 at 10.) Petitioner states

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his actual innocence claim was “mentioned in his opposition to motion to dismiss, but not argued

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because there was no need based upon the truth of the matter.” Id.

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A district court has the discretion to consider evidence or claims presented for the first

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time in objections to a Magistrate Judge’s Report and Recommendation. See Brown v. Roe, 279

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F.3d 742, 744-45 (9th Cir. 2002). Despite the fact that Petitioner did not raise this claim until he

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filed his objections, the Court will consider Petitioner’s actual innocence claim.

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In McQuiggin v. Perkins, the United States Supreme Court held that “actual innocence”
can be an exception to the one-year limitations period:
We hold that actual innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural bar, . . . , or, as in this
case, expiration of the statute of limitations. We caution, however, that tenable
actual-innocence gateway pleas are rare: “[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in light of the new evidence,
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no juror, acting reasonably, would have voted to find him guilty beyond a reasonable
doubt.” Schlup [v. Delo], 513 U.S. [298,] 329 [(1995)]; see House [v. Bell], 547
U.S. [518,] 538 [(2006)] (emphasizing that Schlup standard is “demanding” and
seldom met). And in making an assessment of the kind Schlup envisioned, “the
timing of the [petition]” is a factor bearing on the “reliability of th[e] evidence”
purporting to show actual innocence. Schlup, 513 U.S., at 332.

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569 U.S. 383, 386 (2013).

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However, the “actual innocence gateway,” may only be employed when a petitioner “falls

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within the ‘narrow class of cases . . . implicating a fundamental miscarriage of justice.’” Schlup,

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513 U.S. at 314-15 (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)). A petitioner must

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demonstrate factual innocence and “not mere legal insufficiency.” Bousley v. United States, 523

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U.S. 614, 623 (1998). Consequently,
[t]o be credible, such a claim [of actual innocence] requires petitioner to support his
allegations of constitutional error with new reliable evidence – whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence – that was not presented at trial.”

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Schlup, 513 U.S. at 324. Further, a petitioner “must show that it is more likely than not that no

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reasonable juror would have convicted him in light of the new evidence.” Id. at 327.

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Here, Petitioner admits he “is now presenting” an allegation “of factual innocence, [that]

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is not newly discovered, only newly presented.” (Doc. 39 at 15.) Petitioner does not present

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“exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence –

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that was not presented at trial.” Indeed, Petitioner has not suggested the existence of any new

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exculpatory evidence. Rather, Petitioner argues trial counsel was ineffective for a number of

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different reasons. He admits that all the evidence he relies on was present at the time of trial, “as

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duly recorded in all the declarations.” Id. at 32. Based on these allegations, Petitioner has not

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shown “that it is more likely than not that no reasonable juror would have convicted him in light

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of the new evidence.” Schlup, 513 U.S. at 327.

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Further, Petitioner had the information he now bases his actual innocence claim on prior

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to the expiration of his limitations period. Petitioner states he received trial counsel’s “person[al]

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notes on August 21, 2015 and entire criminal file on November 9th to 11th, 2015, both of which

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contained evidence of factual innocence.” Id. at 33. Petitioner’s statutory limitations period
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extended to December 3, 2015; consequently, Petitioner could have timely filed a claim based on

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this evidence. Petitioner had a reasonable opportunity to have all his claims heard on the merits

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but failed to timely do so.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), having carefully reviewed

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the entire file de novo, the Court concludes that the findings and recommendation are supported

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by the record and proper analysis.

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IV.

Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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The Court’s order adopting the findings and recommendation, (Doc. 37), and

judgment, (Doc. 38), entered on August 16, 2018, are VACATED;
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Petitioner’s motion for reconsideration, (Doc. 45), filed November 19, 2018, is

GRANTED;
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After reconsideration, the findings and recommendation filed June 8, 2018, (Doc.

32), are ADOPTED IN FULL;

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4.

The Clerk of Court is DIRECTED to enter judgment; and

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The Court DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

June 28, 2019

UNITED STATES CHIEF DISTRICT JUDGE
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