Brinkley v. Curry

Filing 15

ORDER signed by Senior Judge Justin L. Quackenbush on 4/9/09: The Clerk of this court shall enter this Order and forward copies of this Order, his habeas corpus petition, and Judge Muellers November 16, 2007 to the Petitioner Frederick C. Brinkley at his last known address. (Kaminski, H)

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U N IT E D STATES DISTRICT COURT E A S T E R N DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) )

FR E D E R IC K BRINKLEY, P e titio ne r, vs .

No. CIV-S-07-1482-JLQ ORDER DIRECTING RESPONSE BY PETITIONER AND TO FURNISH COPY OF PETITION

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BEN CURRY, Warden, Respondent. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _____)

T he court is in receipt of a copy of the Petitioner's letter dated March 31, 2009
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re q ue s ting a copy of his habeas corpus petition found in Clerk's Record (C.R.) # 1. That re q ue s t is Granted.

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T he Petitioner filed this action in the United States District Court for the Northern D is tric t of California on January 18, 2007, challenging his 1983 conviction in California

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s ta te court of kidnaping for the purpose of robbery. This belated federal petition was the re a fte r transferred to this District since the underlying conviction took place in a state

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c o urt situate in this District. On November 16, 2007, Judge Kimberly J. Mueller of this c o urt, entered an Order To Show Cause advising the Petitioner of the one year statute of

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limita tio n set forth in the Antiterroism and Effective Death Penalty Act (AEDPA), 28 U .S .C . § 2244. Judge Mueller's Order directed the Petitioner to show cause why his

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P e titio n should not be denied since more than one year had expired since his direct appeal o f his conviction was denied. There is no evidence of any response to that Order.

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H o w e ve r, to ensure that the Petitioner received a copy of that Order and to afford the
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P e titio ne r the opportunity to show cause why his Petition should not be denied due to its untime line s s , this court will afford the Petitioner a final opportunity to respond. T he Petitioner directly appealed his state court conviction to the California Court o f Appeals which was adversely concluded as to the Petitioner in 1985. Apparently, he d id not seek review by the California Supreme Court of the action of the Court of Appeals. It appears his right to seek relief in this court expired in 1987. He now realleges that e rro rs were committed during his 1983 trial that should be the basis for the granting of his P e titio n. Obviously, such claims are precluded due to the expiration of the statute of limita tio ns set forth in the AEDPA. S e c o nd ly, it appears that the Petitioner may be contending that he is actually inno c e nt by reasons of statements allegedly made some five years after Brinkley's c o nvic tio n by a fellow prisoner, now deceased, Jimmy Ray Smith, that it was he (Smith) ra the r than the Petitioner who committed the crime(s) of which the Petitioner was c o n v ic te d . His petition seeking relief from the California state courts based upon these a lle ge d statements by the deceased fellow prisoner have been denied. While the AEDPA p re c lud e s any federal claim by the Petitioner as to trial errors during the 1983 trial, "in c e rta in exceptional cases involving a compelling claim of actual innocence, the state p ro c e d ura l bar is not a bar to a federal habeas corpus petition." House v. Bell, 547 U.S. 5 1 8 , 521 (2006); Schlup v. Delo, 513 U.S. 298 (1995). As set forth in the foregoing S u p re me Courts case, to establish actual innocence as a gateway to defaulted claims, it mus t be established that "in light of new evidence `it is more likely than not that no re a s o na b le juror would have found petitioner guilty beyond a reasonable doubt'." Bell @ 5 3 7 . To establish the gateway claim, the new evidence must be both credible and new r e lia b le evidence such a scientific evidence, trustworthy eyewitness accounts, or critical p hys ic a l evidence that was not presented the initial trial. Schlup @ 324. The difficulty w ith the new evidence claim in this matter is that there is nothing to suggest that the he a rs a y testimony of witnesses who allegedly heard Jimmy Ray Smith admit the offenses
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w o uld be admissible at trial. Even if it was determined under some evidentiary rule, not a p p a re nt to this court, that Smith's alleged confession to other prisoners would be a d mis s ib le , this court is unable to categorize or find such testimony to be of such a reliable na ture as would constitute such an exceptional circumstance that would result in no juror find ing Brinkley guilty. For these reasons, it is apparent to this court that the Petitioner's a c tua l innocence claim based upon hearsay testimony of Smith's alleged statements is ins uffic ie nt to warrant relief as sought by the Petitioner. H o w e ve r, prior to denying the Petition, the court will afford the Petitioner an o p p o rtunity to show cause, in writing, why the court's views of lack of merit in the Petition are in error. The Petitioner may file his position within thirty days from the d a te of mailing of this Order to him. The court will also direct the Clerk of this court to inc lud e in this mailing a copy of Judge Mueller's November 16, 2007 Order To Show C a us e (C. R. 4). T he Clerk of this court shall enter this Order and forward copies of this Order, his ha b e a s corpus petition, and Judge Mueller's November 16, 2007 to the Petitioner Fre d e ric k C. Brinkley at his last known address. D A T E D this 9th day of April 2009. s / Justin L. Quackenbush J U S T IN L. QUACKENBUSH S E N IO R UNITED STATES DISTRICT JUDGE

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