Anul Malik Ram v. Sacramento County

Filing 39

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 6/1/2017 RECOMMENDING respondent's 30 motion to dismiss be granted. Referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANUL MALIK RAM, 12 13 14 15 No. 2:15-cv-2074 WBS DB P Petitioner, v. FINDINGS AND RECOMMENDATIONS SACRAMENTO COUNTY, Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a 18 writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges her 2011 pleas of guilty to 19 second degree murder and not guilty by reason of insanity to attempted murder. Petitioner 20 claims: (1) there was no legally sufficient basis for her plea to attempted murder, and (2) counsel 21 was ineffective for failing to challenge the legal sufficiency of that charge. Respondent’s motion 22 to dismiss the petition as untimely is before the court. For the reasons set forth below, this court 23 recommends the motion to dismiss be granted. 24 BACKGROUND 25 In 2009, petitioner was charged with the first degree murder of her three-year-old 26 daughter, with the special circumstance of sexual penetration during the course of the homicide. 27 (See ECF No. 24-2 at 47.) On April 29, 2011, petitioner entered a guilty plea to second degree 28 murder. (Id. at 84.) At the time she entered her plea, the prosecutor amended the information to 1 1 add a charge of attempted murder of petitioner’s seven-year-old son. (Id. at 86.) Petitioner then 2 entered a plea of not guilty by reason of insanity to that newly added count. (Trans. of Change of 3 Plea (LD 11).) On June 11, 2011, the Sacramento County Superior Court sentenced petitioner to a 4 term of fifteen years to life in state prison on the murder count and immediate commitment to 5 Napa State Hospital on the attempted murder count. (LD 3, 4.) 6 Petitioner did not appeal her conviction. 7 In January 2015, according to petitioner, she regained competency. On June 21, 2015, 8 petitioner, acting in pro per, filed a request with the Court of Appeal for the Third Appellate 9 District for an order permitting the filing of an untimely notice of appeal. The Court of Appeal 10 denied that request. (See ECF No. 24-1 at 5-6.) 11 On August 25, 2015, petitioner filed a federal petition for a writ of habeas corpus in the 12 United States District Court for the Central District of California. (ECF No. 1.) On October 2, 13 2015, the case was transferred to the Eastern District. (ECF Nos. 3, 4.) On April 15, 2016, the 14 court appointed the Federal Defender to represent petitioner. (ECF No. 10.) Shortly thereafter, 15 attorney Marylou Hillberg was substituted for the Federal Defender. (ECF No. 14.) 16 On November 20, 2016, petitioner moved to amend the petition. (ECF No. 24.) The court 17 granted that motion and petitioner’s first amended petition (ECF No. 24-1) became the operative 18 petition in this proceeding. 19 On November 23, 2016, petitioner filed a petition for a writ of habeas corpus in the 20 California Supreme Court. (See ECF No. 27 at 2.) In that petition, petitioner raised the same 21 claims raised in the first amended petition herein. (See id.) On January 25, 2017, the California 22 Supreme Court denied that petition. (ECF No. 29 at 2.) 23 On March 2, 2017, respondent moved to dismiss the petition as untimely. (ECF No. 30.) 24 The court considers respondent’s motion below. 25 //// 26 1 27 On March 15, 2017, respondent lodged documents from petitioner’s state court criminal proceedings. (See ECF No. 31.) Those documents are referred to by their Lodged Document (“LD”) number. 28 2 1 MOTION TO DISMISS 2 Respondent argues the claims in the first amended petition are untimely because they do 3 not relate back to the claims in the original petition. Petitioner contends the claims do relate back 4 and, even if they do not, she is excused from the statute of limitations because she is actually 5 innocent of the attempted murder of her son. 6 I. Legal Standards 7 A. Standards for Motion to Dismiss 8 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 9 petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the 10 petitioner is not entitled to relief in the district court.” The Court of Appeals for the Ninth Circuit 11 construes a motion to dismiss a habeas petition as a request for the court to dismiss under Rule 4. 12 See O‘Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). Accordingly, the court will review 13 respondent's motion to dismiss pursuant to its authority under Rule 4. 14 In ruling on a motion to dismiss, the court “must accept factual allegations in the [petition] as 15 true and construe the pleadings in the light most favorable to the non-moving party.” Fayer v. 16 Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (quoting Manzarek v. St. Paul Fire & Marine Ins. 17 Co., 519 F.3d 1025, 1030 (9th Cir. 2008)). In general, exhibits attached to a pleading are “part of 18 the pleading for all purposes.” Hartmann v. Cal. Dept. of Corr. and Rehab., 707 F.3d 1114, 1124 19 (9th Cir. 2013) (quoting Fed. R. Civ. P. 10(c)). 20 21 22 23 24 25 26 27 28 B. Statute of Limitations The habeas statute’s one-year statute of limitations provides: 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— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 3 1 (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 2 3 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 4 5 6 28 U.S.C. § 2244(d)(1). 7 Under subsection (d)(1)(A), the limitations period runs from the time a petition for certiorari 8 to the United States Supreme Court was due, or, if one was filed, from the final decision by that 9 court. Lawrence v. Florida, 549 U.S. 327, 339 (2007). 10 1. Tolling 11 The limitations period is statutorily tolled during the time in which “a properly filed 12 application for State post-conviction or other collateral review with respect to the pertinent 13 judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). A state petition is “properly filed,” and 14 thus qualifies for statutory tolling, if “its delivery and acceptance are in compliance with the 15 applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). “The period 16 between a California lower court's denial of review and the filing of an original petition in a 17 higher court is tolled—because it is part of a single round of habeas relief—so long as the filing is 18 timely under California law.” Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010) (citing Evans v. 19 Chavis, 546 U.S. 189, 191-93 (2006)); see also Carey v. Saffold, 536 U.S. 214, 216-17 (2002) 20 (within California's state collateral review system, a properly filed petition is considered 21 “pending” under section 2244(d)(2) during its pendency in the reviewing court as well as during 22 the interval between a lower state court's decision and the filing of a petition in a higher court, 23 provided the latter is filed within a “reasonable time”). 24 The limitations period may be equitably tolled if a petitioner establishes “‘(1) that he has been 25 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and 26 prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. 27 DiGuglielmo, 544 U.S. 408, 418 (2005)). An extraordinary circumstance must be more than 28 merely “‘oversight, miscalculation or negligence on [the petitioner's] part.’” Waldron–Ramsey v. 4 1 Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (quoting Harris v. Carter, 515 F.3d 1051, 1055 2 (9th Cir. 2008)). Rather, petitioner must show that some “external force” “stood in his way.” Id. 3 “The high threshold of extraordinary circumstances is necessary lest the exceptions swallow the 4 rule.” Lakey v. Hickman, 633 F.3d 782 (9th Cir. 2011) (citations and internal quotation marks 5 omitted). 6 2. 7 Relation Back Where a petitioner has filed a timely petition and then amends to replace the original claims 8 with new claims, but does so after expiration of the statute of limitations, those new claims are 9 only timely if they “relate back” to the claims in the original timely petition. See Mayle v. Felix, 10 545 U.S. 644, 654-55 (2005). In order for claims to relate back, they must be “tied to a common 11 core of operative facts.” Id. at 664. Simply arising out of the same “trial, conviction, or 12 sentence” is insufficient. Id. A claim “does not relate back (and thereby escape AEDPA's one- 13 year time limit) when it asserts a new ground for relief supported by facts that differ in both time 14 and type from those the original pleading set forth.” Id. at 650. 15 II. Analysis Petitioner does not contest the untimeliness of her petition filed August 25, 2015.2 She 16 17 contends, however, that she was incompetent until January 2015 and therefore the statute of 18 limitations did not begin to run until that time. Respondent concedes that point for purposes of 19 this motion. Respondent states that should the court deny the motion to dismiss, respondent will 20 answer the first amended petition, preserve the statute of limitations defense based on the 21 equitable tolling argument, and proceed on the merits of petitioner’s claims. (ECF No. 30 at 4 22 and n.4.) Thus, for purposes of this motion, petitioner’s August 25, 2015 petition will be considered 23 24 timely filed. The two issues then are: (1) whether the claims in the first amended petition relate 25 2 26 27 28 Because petitioner was acting in pro per, the filing date for her petition was the date she gave it to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 270 (1988). That date is August 10, 2015. (See ECF No. 1 at 15.) The twelve-day difference between the date petitioner gave the petition to prison authorities and the date it was filed is not relevant to the court’s analysis herein. For ease of reference, this court refers to the petition by the date it was filed in this court. 5 1 back to the claims in the original petition; and (2) whether the first amended petition should be 2 excepted from the statute of limitations bar because petitioner is actually innocent. 3 4 5 A. Relation Back 1. Claims in the Original Petition Because they were filed by petitioner acting in pro per, the claims in the original petition 6 are not entirely clear. Respondent characterizes them as claims that petitioner was not competent 7 to stand trial and that her attorney failed to inform her of her appeal rights. Based on the fact 8 petitioner sought supervised conditional release from Napa State Hospital, respondent argues that 9 petitioner’s claims should be considered as challenges to only her murder conviction. Petitioner’s 10 counsel characterizes the claims in the original petition differently. She contends petitioner was 11 challenging her plea in all respects and that she challenged the competence of her attorney in the 12 course of the plea negotiations. 13 The court must review a pro se petitioner’s filings liberally. Hebbe v Pliler, 627 F.3d 338, 14 342 (9th Cir. 2010). A fair review of petitioner’s original petition shows that petitioner made the 15 following allegations: (1) she was incompetent at the time she entered her pleas (ECF No. 1 at 5, 16 10); (2) her trial attorney failed to request a competency evaluation at that time (id. at 7); and (3) 17 her trial attorney did not inform her that she had only 60 days to appeal (id. at 8). 18 19 2. Claims in the First Amended Petition In the first amended petition, petitioner makes two claims. First, she alleges she was 20 deprived of due process because there was an insufficient factual basis for the attempted murder 21 charge. (ECF No. 24-1 at 10-11.) Petitioner alleges that the attempted murder charge was 22 requested by petitioner’s trial attorney as part of the plea negotiations so that petitioner could get 23 mental health treatment. At the change of plea hearing, petitioner’s trial attorney informed the 24 court of the parties’ stipulation that “there’s a factual basis for the amended charge and that she is, 25 in fact, not guilty by reason of insanity on that particular count.” (LD 1 at 3.) The district 26 attorney then set out the factual basis for the attempted murder charge. The charge was based on 27 petitioner’s statements to investigators that after she killed her daughter, “she instructed her son to 28 remove his clothing” and “had begun preparations to drown him as well.” (Id. at 4.) 6 1 In her second claim, petitioner alleges her trial attorney rendered ineffective assistance 2 because he failed to inform petitioner that the attempted murder charge was a legal fiction created 3 to allow petitioner to get mental health treatment. Petitioner states that she did not realize she 4 was consenting to an indefinite period of hospitalization at Napa State Hospital. While 5 recognizing that the treatment she received there was “beneficial,” petitioner complains that her 6 stay at Napa State Hospital “has consumed seven years of [her] life for which she will receive no 7 credit against the prison sentence awaiting her for the crime she does not contest, the murder of 8 her daughter.” (ECF No. 33 at 2.) 9 10 11 3. Do the Claims in the First Amended Petition Relate Back? a. The Legal Frameworks for the Claims are Distinct Petitioner’s original claims and amended claims are legally distinct. The analytical 12 framework for a challenge to competence to plead guilty, petitioner’s original claim, is the same 13 as the test for competence to stand trial. It requires the court to consider whether petitioner had 14 the ability at the time of the plea hearing “to consult with h[er] lawyer with a reasonable degree of 15 rational understanding” and had “a rational as well as factual understanding of the proceedings 16 against h[er].” Godinez v. Moran, 509 U.S. 389, 396 (quoting Dusky v. United States, 362 U.S. 17 402, 402 (1960) (per curiam)). Whether a defendant was capable of understanding the 18 proceedings and assisting counsel depends on “evidence of the defendant's irrational behavior, 19 h[er] demeanor in court, and any prior medical opinions on competence to stand trial.” Drope v. 20 Missouri, 420 U.S. 162, 180 (1975). None of these factors is determinative, but any one of them 21 may be sufficient to raise a reasonable doubt about competence. Id. A reviewing court should 22 determine whether a defendant had “the ability to make a reasoned choice among the alternatives 23 presented to h[er].” Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir. 1997) (quoting Chavez v. 24 United States, 656 F.2d 512, 518 (9th Cir. 1981)). 25 The analytical framework for petitioner’s claim that there was no legal basis for the 26 attempted murder charge is different. Petitioner appears to argue in his petition that the Due 27 Process Clause mandates a factual basis for a plea. (ECF No. 24-1 at 10-11.) While it is 28 questionable whether that claim is cognizable in a federal habeas proceeding, see Loftis v. 7 1 Almager, 704 F.3d 645, 647-48 (9th Cir. 2012) (no constitutional requirement that judge find a 2 factual basis for a guilty plea), the court is not at this point considering the merits of petitioner’s 3 claim, only its analytical framework. As a due process claim challenging the lack of evidence 4 supporting a criminal charge, the court finds an insufficiency of the evidence analysis appropriate. 5 In reviewing a sufficiency of the evidence claim, a court must determine whether, viewing 6 the evidence and the inferences to be drawn from it in the light most favorable to the prosecution, 7 any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. 8 Jackson v. Virginia, 443 U.S. 307, 319 (1979). The essential elements of the crime of attempted 9 murder are the “specific intent to kill” and “the commission of a direct but ineffectual act toward 10 accomplishing the intended killing.” People v. Lee, 31 Cal. 4th 613, 623 (2003). 11 The analytical framework for the ineffective assistance of counsel claims is, of course, the 12 same. However, the operative facts underlying each claim are, like the facts supporting the other 13 claims, different. 14 15 b. The Operative Facts for the Claims are Distinct The operative facts for the claims in the original petition involve petitioner’s competence 16 at the time she entered her pleas. The court does not accept respondent’s characterization of those 17 claims as challenging only the murder conviction. Rather, liberally construed, petitioner appeared 18 to be attempting to challenge her pleas to both charges. In the original petition, petitioner 19 describes her mental state when she was in jail after her arrest and at the time of her pleas. (See 20 ECF No. 1 at 5, 7-8, 10.) 21 The operative facts for the claims in the first amended petition arise out of a different set 22 of facts – the circumstances at the time of the crimes. (See ECF No. 24-1 at 10-12.) Petitioner’s 23 argument focuses on the absence of an act. The question of whether petitioner committed an act 24 with the purpose of killing of her son would require consideration of facts showing what occurred 25 that day. 26 Petitioner argues that the operative facts for both sets of claims are the same – they 27 involve the voluntariness of petitioner’s plea. According to petitioner, the claims are all 28 supported by the reports from the alienists describing petitioner’s psychotic state at the time of the 8 1 crimes. Petitioner paints her claims with too broad a brush. 2 Petitioner’s state of mind at issue in her first petition is her state of mind at the time she 3 entered her pleas. In the second petition, the issues are petitioner’s state of mind and actions at 4 the time of the murder and attempted murder. The crimes were committed on November 15, 5 2009. (See Transc. of Prelim. Hrg., Ex. 1 to First Am. Pet., at 5 (ECF No. 24-2 at 8).) Petitioner 6 entered her pleas on April 29, 2011, over seventeen months later. While there would be some 7 overlapping facts regarding petitioner’s mental health, the time periods are distinct, and therefore, 8 much of the evidence would be different. 9 The associated claims of ineffective assistance of counsel are not related simply because 10 they both deal with counsel’s behavior during the plea proceedings. See United States v. Ciampi, 11 419 F.3d 20, 24 (1st Cir. 2005) (“[A] petitioner does not satisfy the Rule 15 ‘relation back’ 12 standard merely by raising some type of ineffective assistance in the original petition, and then 13 amending the petition to assert another ineffective assistance claim based upon an entirely distinct 14 type of attorney misfeasance.”); Schneider v. McDaniel, 674 F.3d 1144, 1151-53 (9th Cir. 2012) 15 (ineffectiveness for failure to obtain competency evaluation to stand trial not the same as 16 ineffectiveness for failure to develop a voluntary intoxication defense). Those ineffective 17 assistance of counsel claims are supported, in large part, by the same core of facts underlying 18 petitioner’s other claims – her competence during the plea negotiations in the original petition and 19 the factual basis for the attempted murder charge, based on petitioner’s mental state at the time of 20 the crimes, in the amended petition. 21 Petitioner cites Valdovinos v. McGrath, 598 F.3d 568 (9th Cir. 2010) in support of her 22 relation back argument. In Valdovinos, the court held that an amended Brady claim related back 23 to the original Brady claim because 24 25 26 27 28 both the original and amended claims pertain to suppressed exculpatory evidence originating from materials from the police investigation. Each claim, therefore, is of the same typeexculpatory information the government had in its file-that the government failed to disclose at the required time. . . “[t]he Brady claims in the original [petition] ... satisfy Rule 15(c) by providing the government with the notice that the statutes of limitation were intended to provide.” Id. Therefore, we hold that the district court 9 1 did not abuse its discretion in permitting the amendments to the Brady claims.” 2 3 598 F.3d at 575. The court also considered associated ineffective assistance of counsel claims. 4 The court held that the addition of four new pieces of evidence that counsel failed to find was 5 related to the original ineffective assistance of counsel claim that counsel did not adequately 6 investigate suppressed exculpatory evidence upon learning of it. Id. at 575-76.3 Unlike Valdovinos, this is not a case in which an amended claim “simply add[ed] more 7 8 evidence” to the original claim. See 593 F.3d at 575; see also Rodriguez v. Adams, 545 Fed. 9 App’x 620 (9th Cir. Nov. 18, 2013) (later claim that counsel was ineffective for failing to 10 investigate the testimony of two potential exculpatory witnesses who were present at the scene 11 related back to earlier claim that counsel was ineffective for failing to investigate the testimony of 12 three other witnesses who also were present at the scene). The court finds petitioner’s claims in the first amended petition do not relate back to the 13 14 claims in the original petition. The core facts underlying each set of claims is different in both 15 time and type. Further, the legal analysis for each claim is not the same. For the claims to 16 survive the statute of limitations, petitioner must show an exception to the statute or a basis for 17 tolling. Petitioner does not argue any sort of tolling applies after she regained competence in 18 January 2015. The court addresses petitioner’s one remaining argument – that she is actually 19 innocent of the attempted murder of her son and should not be bound by the statute of limitations 20 for claims regarding her plea to attempted murder. 21 B. Exception to Statute of Limitations for Actual Innocence 22 The United States Supreme Court has held that “[a]ctual innocence, if proved, serves as a 23 gateway through which a petitioner may pass whether the impediment is a procedural bar . . . [or] 24 expiration of the statute of limitations. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). 25 “When an otherwise time-barred habeas petitioner ‘presents evidence of innocence so strong that 26 3 27 28 Valdovinos was vacated on other grounds. See Horel v. Valdovinos, 562 U.S. 1196 (2011). On remand, the Court of Appeals reiterated its determinations that amendments to the Brady and ineffective assistance of counsel claims were timely because the claims related back to the original petition. 423 Fed. App’x 720 (9th Cir. 2011). 10 1 a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the 2 trial was free of non-harmless constitutional error,’ the Court may consider the petition on the 3 merits. Stewart v. Cate, 757 F.3d 929, 937-38 (9th Cir. 2014) (quoting Schlup v. Delo, 513 U.S. 4 298 (1995)). The standard is very high and “tenable actual-innocence gateway pleas are rare.” 5 McQuiggin, 133 S. Ct. at 1928. A petitioner must show that “no juror, acting reasonably, would 6 have voted to find him guilty beyond a reasonable doubt.” Id. (citing Schlup, 513 U.S. at 329). 7 As the Court stated earlier, a petitioner must show “it is more likely than not that no reasonable 8 juror would have found petitioner guilty beyond a reasonable doubt.” House v. Bell, 547 U.S. 9 518, 536-37 (2006), Courts have found the “Schlup gateway” satisfied in few cases. In Larsen v. Soto, 742 10 11 F.3d 1083, 1096-97 (9th Cir. 2013), the court noted that the Schlup gateway is “demanding” and 12 “precedents holding that a habeas petitioner satisfied its strictures have typically involved 13 dramatic new evidence of innocence.” In McQuiggin, the Supreme Court re-stated its description 14 of the Schlup gateway: “‘[A] petitioner does not meet the threshold requirement unless he 15 persuades the district court that, in light of the new evidence, no juror, acting reasonably, would 16 have voted to find him guilty beyond a reasonable doubt.’” 133 S. Ct. at 1928 (quoting Schlup, 17 513 U.S. at 329). Thus, the Schlup gateway requires the production of “‘new reliable evidence— 18 whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical 19 physical evidence’—sufficient to persuade the district court that ‘no juror, acting reasonably, 20 would have voted to find him guilty beyond a reasonable doubt.’” Zapata v. Davis, No. SA-16- 21 CA-1244-XR, 2017 WL 1403307, at *2 (W.D. Tex. Apr. 18, 2017) (Schlup gateway through 22 statute of limitations requires presentation of new evidence of innocence) (quoting McQuiggin, 23 133 S. Ct. at 1928); see also Black v. Vasquez, No. CV 16-4940-ODW (GJS), 2016 WL 24 6436822, at *7 (C.D. Cal. Oct. 31, 2016) (“The Schlup gateway test requires the presentation of 25 ‘new reliable evidence,’ which then is compared to the evidence presented previously.”); 26 Shoulders v. Eckard, No. 14-1753, 2016 WL 1237798, at *4 (W.D. Pa. Feb. 29, 2016); Lowman 27 v. Swarthout, No. 13-cv-1729-BAS (PCL), 2014 WL 4704590, at *3 (S.D. Cal. Sept. 22, 2014). 28 //// 11 1 In the present case, petitioner fails to tender any new evidence, much less the requisite 2 “reliable evidence” required by Schlup, to show actual innocence. Petitioner argues that the facts 3 are not disputed and that they do not establish attempted murder. Petitioner’s argument is a legal, 4 not factual, one. A claim that the facts were legally insufficient to establish the charged violation 5 is not a basis for a showing of actual innocence under McQuiggin and Schlup. See Bousley v. 6 United States, 523 U.S. 614, 623 (1998) (“‘[A]ctual innocence’ means factual innocence, not 7 mere legal insufficiency.”); Hageman v. Hill, 314 Fed. App’x 996, at *1 (9th Cir. 2009) (same); 8 Jones v. Ducart, No. 2:13-cv-2129-JKS, 2016 WL 6494579, at *16 (E.D. Cal. Nov. 1, 2016) 9 (same). Accordingly, petitioner’s contention that he is entitled to an exception to the statute of 10 limitations based on actual innocence should fail. 11 For the reasons set forth above, the court finds the claims in the first amended petition do 12 not relate back to the claims in the original petition and are, therefore, untimely. The court 13 further finds that petitioner has failed to establish an exception to the statute of limitations for 14 actual innocence. Accordingly, IT IS HEREBY RECOMMENDED that respondent’s motion to 15 dismiss (ECF No. 30) be granted. 16 These findings and recommendations will be submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. The document should be captioned 20 “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the 21 objections shall be filed and served within seven days after service of the objections. The parties 22 are advised that failure to file objections within the specified time may result in waiver of the 23 right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In the 24 objections, the party may address whether a certificate of appealability should issue in the event 25 an appeal of the judgment in this case is filed. See Rule 11, Rules Governing § 2254 Cases (the 26 //// 27 //// 28 //// 12 1 district court must issue or deny a certificate of appealability when it enters a final order adverse 2 to the applicant). 3 Dated: June 1, 2017 4 5 6 7 8 9 10 11 DLB:9 DLB1/prisoner-habeas/ram2074.mtd 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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