Doe v. Gipson

Filing 26

ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 2/25/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 2/25/2013)

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*E-Filed 2/25/13*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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ORDER OF DISMISSAL

Petitioner,

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v.

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No. C 12-0716 RS (PR)

T. HUGHES,

C. GIPSON, Warden,
Respondent.

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/

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INTRODUCTION

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Petitioner seeks federal habeas relief from his state convictions. Respondent moves to

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dismiss as untimely the petition for such relief. For the reasons discussed herein,

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respondent’s motion to dismiss (Docket No. 22) is GRANTED. The petition is DISMISSED.

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DISCUSSION

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A.

Standard of Review

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Federal habeas petitions must be filed within one year of the latest of the date on

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which: (1) the judgment became final after the conclusion of direct review or the time passed

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for seeking direct review; (2) an impediment to filing an application created by

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No. C 12-0716 RS (PR)
ORDER OF DISMISSAL

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unconstitutional state action was removed, if such action prevented petitioner from filing; (3)

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the constitutional right asserted was recognized by the Supreme Court, if the right was newly

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recognized by the Supreme Court and made retroactive to cases on collateral review; or (4)

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the factual predicate of the claim could have been discovered through the exercise of due

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diligence. See 28 U.S.C. § 2244(d)(1). “[W]hen a petitioner fails to seek a writ of certiorari

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from the United States Supreme Court, the AEDPA’s one-year limitations period begins to

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run on the date the ninety-day period defined by Supreme Court Rule 13 expires.” Bowen v.

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Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

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B.

Petitioner’s conviction became final on December 30, 2003, when the time expired for

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United States District Court
For the Northern District of California

Timeliness of the Petition

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appealing to the United States Supreme Court the state supreme court’s denial of his petition

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for review. Petitioner, then, had until December 31, 2004 to file a timely federal habeas

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petition. The instant petition was filed on February 14, 2012, well after the December 31,

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2004 deadline. On this record, absent statutory or equitable tolling, or an equitable

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exception, the petition is barred by AEDPA’s statute of limitations and must be dismissed.

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1.

Statutory Tolling

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For purposes of statutory tolling, the time during which a properly filed application for

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state post-conviction or other collateral review is pending is excluded from the one-year

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limitations period. See § 2244(d)(2). On March 10, 2004, 71 days after his convictions

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became final, petitioner filed a petition for writ of corum nobis in the state supreme court,

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which transferred the petition to the court of appeal, which denied it on April 22, 2004. Eight

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hundred and thirty-one days later, on August 1, 2006,1 petitioner filed a petition for writ of

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corum nobis in state superior court, which later denied it. Petitioner appealed to the state

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appellate court, which denied his appeal on July 3, 2008. On October 16, 2008, the state

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supreme court denied review. Petitioner filed his next petition for state collateral review on

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The exact filing day in April is unknown, so out of caution, the Court selects the first

28 day.
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No. C 12-0716 RS (PR)
ORDER OF DISMISSAL

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December 4, 2008. He filed more petitions from 2008–2011, the last of which was denied by

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the state supreme court on November 30, 2011.
Petitioner is not entitled to statutory tolling. By the time he filed his August 1, 2006

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petition, 902 days (71 + 831) had passed, which is more than the one year after his conviction

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became final. Accordingly, absent equitable tolling or an equitable exception, the petition is

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barred by the statute of limitations and must be dismissed.

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2.

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Petitioner does not allege that he is entitled to equitable tolling, nor has he provided

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Equitable Tolling

any support for any such assertion. Therefore, he has not shown “‘(1) that he has been

United States District Court
For the Northern District of California

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pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’

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and prevented timely filing.” Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (quoting

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Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Miles v. Prunty, 187 F.3d 1104, 1107 (9th

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Cir. 1999).

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3.

Equitable Exception: Actual Innocence

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Petitioner claims that he is entitled to an equitable exception2 because he is innocent

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of the crimes of which he was convicted. It is true that “a credible showing of ‘actual

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innocence’ under Schlup v. Delo, 513 U.S. 298 (1995), excuses the statute of limitations

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period established by [AEDPA].” Lee v. Lampert, 653 F.3d 929, 931 (9th Cir. 2011) (en

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banc). Schlup requires a petitioner “to support his allegations of constitutional error with

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new reliable evidence — whether it be exculpatory scientific evidence, trustworthy

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eyewitness accounts, or critical physical evidence — that was not presented at trial.” Id. at

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324.

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This equitable exception is not applicable here. Petitioner has not shown that in light
of new evidence that it is more likely than not that “no reasonable juror would have

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An equitable exception is distinct from the doctrine of equitable tolling: “the phrase
‘equitable tolling’ is used in describing the use of equitable power to allow the untimely
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filing of a habeas petition in an actual innocence case. The more accurate characterization is
28 ‘equitable exception,’ because equitable tolling involves different theoretical underpinnings.”
Lee, 653 F.3d at 932 n.5.
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No. C 12-0716 RS (PR)
ORDER OF DISMISSAL

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convicted him,” Schlup, 513 U.S. at 327, or that “every juror would have voted to acquit

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him,” Lee, 653 F.3d at 946 (citing Schlup, 513 U.S. at 327) (Kozinski, J. concurring). In his

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petition, he alleges that his innocence is shown by (1) his pleading not guilty to the charges,

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(2) a trial exhibit (“Rules of Probation”) was “fabricated,” (3) many of the photographs found

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on his computer were irrelevant because their dates could not be precisely determined, and

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(4) the courts and the police conspired to obstruct justice. Such assertions are insufficient to

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show actual innocence. First, petitioner fails to show how such assertions, even if true,

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undermine the persuasiveness of the other evidence presented at trial, constitute exculpatory

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evidence, or otherwise show actual innocence. The other evidence persuaded a jury that

United States District Court
For the Northern District of California

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petitioner was guilty beyond a reasonable doubt of 12 counts of lewd acts on a child under

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the age of 14, four counts of rape with a foreign object, 19 counts of kidnapping and one

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count of misdemeanor possession of child pornography. Second, none of these

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uncorroborated and largely conclusory assertions constitute “exculpatory scientific evidence,

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trustworthy eyewitness accounts, or critical physical evidence.” Third, as to the specific

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allegations: (1) the fact of his pleading guilty is not new evidence, (2) the slight

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discrepancies in the exhibits do not show fabrication, (3) petitioner has not shown how the

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alleged unknowability of the dates of the photographs exculpates him from charges of

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possessing such photographs, and (4) the conspiracy allegation is entirely conclusory,

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speculative, and without support. In sum, petitioner has not shown that no reasonable juror

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would have convicted him. Accordingly, petitioner has not shown that he is entitled to an

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equitable exception to AEDPA’s statute of limitations. The petition will be dismissed as

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untimely.
CONCLUSION

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For the reasons stated above, respondent’s motion to dismiss the petition as untimely

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(Docket No. 22) is GRANTED. Accordingly, the action is DISMISSED. Petitioner’s

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motions for an evidentiary hearing (Docket No. 19), for reinstatement of his “John Doe”

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status (Docket No. 20), and for a judgment of acquittal (Docket No. 21) are DENIED as

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moot.
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No. C 12-0716 RS (PR)
ORDER OF DISMISSAL

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A certificate of appealability will not issue. Petitioner has not shown “that jurists of

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reason would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right and that jurists of reason would find it debatable whether the district court

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was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The

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Clerk shall enter judgment in favor of respondent, terminate Docket Nos. 19, 20, 21, and 22,

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and close the file.

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IT IS SO ORDERED.
DATED: February 25, 2013
RICHARD SEEBORG
United States District Judge

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United States District Court
For the Northern District of California

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No. C 12-0716 RS (PR)
ORDER OF DISMISSAL