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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1 2 *E-Filed 2/25/13* 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 SAN FRANCISCO DIVISION 11 12 13 ORDER OF DISMISSAL Petitioner, 14 v. 15 16 No. C 12-0716 RS (PR) T. HUGHES, C. GIPSON, Warden, Respondent. 17 / 18 19 INTRODUCTION 20 Petitioner seeks federal habeas relief from his state convictions. Respondent moves to 21 dismiss as untimely the petition for such relief. For the reasons discussed herein, 22 respondent’s motion to dismiss (Docket No. 22) is GRANTED. The petition is DISMISSED. 23 DISCUSSION 24 A. Standard of Review 25 Federal habeas petitions must be filed within one year of the latest of the date on 26 which: (1) the judgment became final after the conclusion of direct review or the time passed 27 for seeking direct review; (2) an impediment to filing an application created by 28 No. C 12-0716 RS (PR) ORDER OF DISMISSAL 1 unconstitutional state action was removed, if such action prevented petitioner from filing; (3) 2 the constitutional right asserted was recognized by the Supreme Court, if the right was newly 3 recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) 4 the factual predicate of the claim could have been discovered through the exercise of due 5 diligence. See 28 U.S.C. § 2244(d)(1). “[W]hen a petitioner fails to seek a writ of certiorari 6 from the United States Supreme Court, the AEDPA’s one-year limitations period begins to 7 run on the date the ninety-day period defined by Supreme Court Rule 13 expires.” Bowen v. 8 Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). 9 B. Petitioner’s conviction became final on December 30, 2003, when the time expired for 10 United States District Court For the Northern District of California Timeliness of the Petition 11 appealing to the United States Supreme Court the state supreme court’s denial of his petition 12 for review. Petitioner, then, had until December 31, 2004 to file a timely federal habeas 13 petition. The instant petition was filed on February 14, 2012, well after the December 31, 14 2004 deadline. On this record, absent statutory or equitable tolling, or an equitable 15 exception, the petition is barred by AEDPA’s statute of limitations and must be dismissed. 16 1. Statutory Tolling 17 For purposes of statutory tolling, the time during which a properly filed application for 18 state post-conviction or other collateral review is pending is excluded from the one-year 19 limitations period. See § 2244(d)(2). On March 10, 2004, 71 days after his convictions 20 became final, petitioner filed a petition for writ of corum nobis in the state supreme court, 21 which transferred the petition to the court of appeal, which denied it on April 22, 2004. Eight 22 hundred and thirty-one days later, on August 1, 2006,1 petitioner filed a petition for writ of 23 corum nobis in state superior court, which later denied it. Petitioner appealed to the state 24 appellate court, which denied his appeal on July 3, 2008. On October 16, 2008, the state 25 supreme court denied review. Petitioner filed his next petition for state collateral review on 26 27 1 The exact filing day in April is unknown, so out of caution, the Court selects the first 28 day. 2 No. C 12-0716 RS (PR) ORDER OF DISMISSAL 1 December 4, 2008. He filed more petitions from 2008–2011, the last of which was denied by 2 the state supreme court on November 30, 2011. Petitioner is not entitled to statutory tolling. By the time he filed his August 1, 2006 3 4 petition, 902 days (71 + 831) had passed, which is more than the one year after his conviction 5 became final. Accordingly, absent equitable tolling or an equitable exception, the petition is 6 barred by the statute of limitations and must be dismissed. 7 2. 8 Petitioner does not allege that he is entitled to equitable tolling, nor has he provided 9 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 10 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ 11 and prevented timely filing.” Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (quoting 12 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Miles v. Prunty, 187 F.3d 1104, 1107 (9th 13 Cir. 1999). 14 3. Equitable Exception: Actual Innocence 15 Petitioner claims that he is entitled to an equitable exception2 because he is innocent 16 of the crimes of which he was convicted. It is true that “a credible showing of ‘actual 17 innocence’ under Schlup v. Delo, 513 U.S. 298 (1995), excuses the statute of limitations 18 period established by [AEDPA].” Lee v. Lampert, 653 F.3d 929, 931 (9th Cir. 2011) (en 19 banc). Schlup requires a petitioner “to support his allegations of constitutional error with 20 new reliable evidence — whether it be exculpatory scientific evidence, trustworthy 21 eyewitness accounts, or critical physical evidence — that was not presented at trial.” Id. at 22 324. 23 24 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 25 26 2 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 27 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. 3 No. C 12-0716 RS (PR) ORDER OF DISMISSAL 1 convicted him,” Schlup, 513 U.S. at 327, or that “every juror would have voted to acquit 2 him,” Lee, 653 F.3d at 946 (citing Schlup, 513 U.S. at 327) (Kozinski, J. concurring). In his 3 petition, he alleges that his innocence is shown by (1) his pleading not guilty to the charges, 4 (2) a trial exhibit (“Rules of Probation”) was “fabricated,” (3) many of the photographs found 5 on his computer were irrelevant because their dates could not be precisely determined, and 6 (4) the courts and the police conspired to obstruct justice. Such assertions are insufficient to 7 show actual innocence. First, petitioner fails to show how such assertions, even if true, 8 undermine the persuasiveness of the other evidence presented at trial, constitute exculpatory 9 evidence, or otherwise show actual innocence. The other evidence persuaded a jury that United States District Court For the Northern District of California 10 petitioner was guilty beyond a reasonable doubt of 12 counts of lewd acts on a child under 11 the age of 14, four counts of rape with a foreign object, 19 counts of kidnapping and one 12 count of misdemeanor possession of child pornography. Second, none of these 13 uncorroborated and largely conclusory assertions constitute “exculpatory scientific evidence, 14 trustworthy eyewitness accounts, or critical physical evidence.” Third, as to the specific 15 allegations: (1) the fact of his pleading guilty is not new evidence, (2) the slight 16 discrepancies in the exhibits do not show fabrication, (3) petitioner has not shown how the 17 alleged unknowability of the dates of the photographs exculpates him from charges of 18 possessing such photographs, and (4) the conspiracy allegation is entirely conclusory, 19 speculative, and without support. In sum, petitioner has not shown that no reasonable juror 20 would have convicted him. Accordingly, petitioner has not shown that he is entitled to an 21 equitable exception to AEDPA’s statute of limitations. The petition will be dismissed as 22 untimely. CONCLUSION 23 For the reasons stated above, respondent’s motion to dismiss the petition as untimely 24 25 (Docket No. 22) is GRANTED. Accordingly, the action is DISMISSED. Petitioner’s 26 motions for an evidentiary hearing (Docket No. 19), for reinstatement of his “John Doe” 27 status (Docket No. 20), and for a judgment of acquittal (Docket No. 21) are DENIED as 28 moot. 4 No. C 12-0716 RS (PR) ORDER OF DISMISSAL 1 A certificate of appealability will not issue. Petitioner has not shown “that jurists of 2 reason would find it debatable whether the petition states a valid claim of the denial of a 3 constitutional right and that jurists of reason would find it debatable whether the district court 4 was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The 5 Clerk shall enter judgment in favor of respondent, terminate Docket Nos. 19, 20, 21, and 22, 6 and close the file. 7 8 IT IS SO ORDERED. DATED: February 25, 2013 RICHARD SEEBORG United States District Judge 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 No. C 12-0716 RS (PR) ORDER OF DISMISSAL

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