Scott v. Hill

Filing 16

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS; DENYING CERTIFICATE OF APPEALABILITY. ***Civil Case Terminated. Signed by Judge Thelton E. Henderson on 10/02/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 10/3/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PATRICK SCOTT,
No. C-13-0245 TEH (PR)

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Petitioner,
ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS; DENYING
CERTIFICATE OF APPEALABILITY

v.
RICK M. HILL, Warden,
Respondent.

Document Nos. 9, 14.
/

United States District Court
For the Northern District of California

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Petitioner Patrick Scott, a state prisoner incarcerated at

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Folsom State Prison, has filed a pro se Petition for a Writ of

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Habeas Corpus under 28 U.S.C. § 2254 challenging a judgment of

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conviction from Alameda County Superior Court asserting the claims

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of (1) actual innocence based upon newly discovered excuplatory

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evidence and (2) prosecutorial misconduct for failing to disclose

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the exculpatory evidence.

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to dismiss the petition as untimely under 28 U.S.C. § 2244(d) and as

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procedurally defaulted.

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Respondent has filed a reply.

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for discovery and for appointment of counsel.

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stated below, Respondent’s motion to dismiss is GRANTED and

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Petitioner’s motion is DENIED.

Doc. #1.

Respondent has filed a motion

Petitioner filed an opposition and
Petitioner has also filed a motion
For the reasons

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I

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Following a jury trial in Alameda County in 1992,

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Petitioner was convicted of one count of second degree murder, two

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counts of attempted murder, and a true finding that he was armed

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with a firearm during the commission of the offenses and that he

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personally used a firearm.

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688-90.

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of twenty-six years, four months to life.

Resp.’s Ex. A, Court Transcript (CT) at

Petitioner was sentenced to state prison for a total term
CT at 786.

On May 11, 1993, the California Court of Appeal affirmed

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the judgment of conviction.

Resp.’s Ex. C.

In April 1997,

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Petitioner filed a petition for a writ of habeas corpus in the

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Alameda County Superior Court, asserting claims not relevant to this

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federal petition, which was denied on August 25, 1997.

Petitioner

United States District Court
For the Northern District of California

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filed the same petition in the Court of Appeal, which was summarily

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denied on January 8, 1998.

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denied the petition on May 27, 1998.

The California Supreme Court summarily
Resp.’s Ex. D.

On November 19, 1999 and December 22, 1999, Petitioner

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filed two more habeas petitions in the California Supreme Court

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again on grounds not relevant to this petition.

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January 25, 2000, the California Supreme Court summarily denied both

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petitions.

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Resp.’s Ex. E.

On

Resp.’s Ex. F.
On April 29, 2009, Petitioner, represented by attorney

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A.J. Kutchins, filed a state habeas petition in Alameda County

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Superior Court in which one of the claims asserted was the actual

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innocence claim he asserts in this federal petition.

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June 3, 2010 Petition to California Supreme Court at 13.

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unpublished written decision, the Superior Court denied the petition

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as untimely, stating:

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Resp.’s Ex. G,
In an

Petitioner failed to show justification for the
substantial delay in seeking habeas relief, and the
Petition is therefore untimely. And because Petitioner
has not demonstrated that his claims fall within an
exception to the untimeliness bar, it is procedurally
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barred, and is therefore denied as untimely.
Ex. G. to June 3, 2010 California Supreme Court petition, In re
Patrick Scott, No. 103500B (Ala. Co. Sup. Ct. Feb. 8, 2010) at 5.

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Petitioner filed the same petition in the Court of Appeal,
which was denied as untimely on April 29, 2010.
2010 California Supreme Court petition.

United States District Court
For the Northern District of California

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Robbins, 18 Cal. 4th 770, 780 (1998).1

in the California Supreme Court, asserting the two claims he asserts
in this federal petition.

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Cal. 4th 750 (1993).2

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Resp.’s Ex. J.

federal petition on January 17, 2013.

On November 20, 2012, the

Petitioner filed the instant
Doc. #1.

II
The record does not include a state court opinion that
provides a summary of facts pertaining to Petitioner’s trial.

The

Court relies on the facts provided by Respondent in his motion to
dismiss and by Petitioner in his June 3, 2010 petition to the
California Supreme Court, which are, for the most part, not in
dispute.

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Resp’s Ex. I.

Supreme Court denied the petition, citing Robbins and In re Clark, 5

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Resp.’s Exs. G, H.

On July 6, 2012, Petitioner filed a pro se habeas petition

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The California Supreme

Court denied this petition on February 23, 2011, citing In re

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Ex. H to June 3,

On November 20, 1989, Petitioner and three friends–Talmadge Bates, Dale Hodges and Patrick Weaver–-armed themselves
with weapons and went looking for Derlin Hines.

They intended to

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In re Robbins, 18 Cal 4th 770 (1998) addresses timeliness of
state habeas petitions.
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In re Clark, 5 Cal. 4th 750 (1993) addresses successive and
delayed petitions.
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get back at Hines for acts of violence they believed Hines had

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committed against themselves and their friends.

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initially told police that they were “out to get” Hines, but later

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told police and testified at trial that they were just going to talk

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to him.

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accompanied by Hodges and Weaver; Bates drove separately in a 1977

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gray Pontiac.

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Petitioner had a .357 revolver; Weaver was wearing a bullet-proof

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vest.

United States District Court
For the Northern District of California

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They took two cars.

Petitioner

Petitioner drove a rented gray Toyota,

Hodges was armed with a semi-automatic pump shotgun;

It was alleged that Bates had an AK-47, which was recovered

in the yard where Petitioner was later apprehended.
At the intersection of Martin Luther King and 29th Street

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in Oakland, Petitioner and his companions saw a Cadillac, which they

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believed was one of Hines’ cars.

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three cars entered a tunnel under the freeway.

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was heard by the victims.

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tunnel, the Pontiac, driven by Bates, hit the Cadillac from the

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rear, and Petitioner’s Toyota crashed into a parked car.

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gunfire continued after the vehicles collided.

They followed the Cadillac.

The

A barrage of gunfire

The Cadillac crashed into the side of the

The

There were three people in the Cadillac, none of whom were

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Hines, and none of whom was armed.

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gunshots.

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Stafford was killed.

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All three were hit by multiple

Aloma Ewing and Marquis Scott were injured.

Petitioner and his companions fled the scene.

Sharea

Three of

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them were apprehended soon after the incident, hiding in back yards

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a few blocks away.

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until several months later.

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Hodges eluded pursuit and was not apprehended

Along the route taken by Petitioner and his companions,
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police found a Barretta .380 semi-automatic pistol, a 12-gauge

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shotgun and an AK-47 rifle.

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found on the floor of the car driven by Bates.

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Petitioner led police to his .357 magnum revolver, which was buried

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under some dirt in a planter box not far from the place where he was

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arrested.

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A .38 caliber special revolver was
The following day,

In all, five guns were recovered.
Four of the six bullets in the .357 had been fired.

The

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12-gauge shotgun was loaded and one round had been expended.

The

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AK-47 rifle was loaded, one bullet was in the chamber and twelve

United States District Court
For the Northern District of California

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bullets were in the magazine.

An AK-47 rifle’s magazine holds

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approximately thirty to forty bullets.

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bullets found in the rifle and the thirty-eight expended AK-47

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bullets found at the scene, either two magazines were used or there

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was more than one AK-47.

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pistol which was jammed and could not be examined, contained live

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ammunition.

Based on the number of

All of the guns, except the automatic

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Examination of the bullet evidence found at the scene of

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the shooting established that more than forty shots had been fired

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by either one or two AK-47's.

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recovered from the scene were positively identified as having been

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fired from the AK-47 rifle found where Petitioner and the others

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were apprehended.

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fired from the same AK-47, but because only fragments were

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collected, the examiner did not have the same degree of certainty

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about the match.

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Ms. Stafford’s body suggested it had been fired from an AK-47,

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although the evidence was insufficient to establish it came from the

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Approximately a dozen bullets

Several bullet fragments appeared to have been

Examination of a bullet fragment recovered from

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rifle found by the police.
Prints found at the scene matched those of Petitioner,

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Bates and Weaver.

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administered after his arrest, revealed the presence of gunshot

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residue on his left hand.

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told police that, after he crashed his car, he fired once or twice

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at the Cadillac.

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injuries sustained by the victims were caused by Petitioner’s

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revolver.

Petitioner is left-handed.

Petitioner

None of the evidence showed that any of the

Petitioner and his companions told the police that, as

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United States District Court
For the Northern District of California

A gunshot residue test of Petitioner,

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they entered the tunnel, a large dark sports utility vehicle (SUV),

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either a Chevy Blazer or Ford Bronco, followed hard behind them.

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While they were in the tunnel, the SUV pulled up alongside their

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cars and one of its passengers began firing an automatic weapon.

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After they crashed their cars, they got out and began firing their

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weapons in an attempt to cover themselves as they ran away.

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surviving victims provided evidence that an SUV was at the scene.

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Another witness saw a “camper/Blazer type vehicle” drive past

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Petitioner and his companions as they ran away from the scene and

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heard gunshots and saw muzzle flashes coming from the SUV as it

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drove off.

The two

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Petitioner’s defense had several prongs.

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testified that Hines was responsible for a number of acts of

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violence directed at him and his friends, and that efforts to

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resolve the situation without violence had failed.

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testified that, on the night of the shooting, he was going to visit

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the mother of his child and his friends accompanied him to ensure

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Petitioner

However, he

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his safety if he happened to see Hines.

Petitioner admitted that he

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and his friends were following the Cadillac, thinking that Hines was

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in it, but denied that they attacked the people in the Cadillac.

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testified that the attack was carried out by one or more gunmen who

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happened upon them as they were tailing the Cadillac, and that they

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were the intended targets of those assailants, or were simply caught

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in the middle of an attack directed at the Cadillac by those other

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parties.

He

On direct and cross-examination, Petitioner admitted that

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United States District Court
For the Northern District of California

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he met up with more people than just Bates, Weaver and Hodges that

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night.

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However, he was impeached with his prior statement to police that he

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had met with people to decide what to do about Hines.

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impeached with the fact that he never mentioned to the police that

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he was going to see his girlfriend that night.

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police, “Last night, the four of us had the mind to get him

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[Hines].”

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police that he had fired at the Cadillac that night.

He denied that he met them with a specific plan in mind.

He was also

He had told the

Petitioner was also impeached with his statement to

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In his June 3, 2010 petition to the California Supreme

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Court, Petitioner indicated that, in the mid-2000's he “happened

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upon” new evidence, including evidence of a ballistics test that

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established that the AK-47 found by police was not the gun that

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fired the bullet fragments recovered from Ms. Stafford’s body.

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3, 2010 Petition to California Supreme Court at 9.

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petition to the California Supreme Court, Petitioner submitted the

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declaration of Roger Patton, the attorney who represented one of

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Petitioner’s companions, Talmadge Bates.

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June

With his

Ex. C to 2010 Petition,

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United States District Court
For the Northern District of California

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Declaration of Roger Patton (Patton Dec.).

Mr. Patton declared,

Around the time Mr. Bates’ trial began (and after Patrick
Scott had been convicted), we received the results of a
ballistics test that I had arranged to be performed on the
gun that bore Mr. Bates’ fingerprints. That test showed
conclusively that the AK-47 rifle found at the scene with
Mr. Bates was not the weapon that fired the fatal shots.
On the basis of this new evidence, we reopened plea
negotiations with the prosecutor, Alameda Deputy District
Attorney William Denny. Mr. Denny offered Mr. Bates the
opportunity to plead guilty to voluntary manslaughter.
Mr. Denny made it clear that his willingness to accept
that lesser plea was a direct result of the ballistics
test which, he indicated, had significantly weakened his
case. I have reviewed my (stored) files of the Talmadge
Bates case. Unfortunately, it appears that, during the
intervening years, the files were stripped and the
ballistics test results were discarded.
Patton Dec. at 1.
III
In this federal petition, Petitioner asserts the following
claims: (1) Petitioner is factually innocent of the charges of
aiding and abetting co-defendant Bates for one count of murder and
two counts of attempted murder by usage of an AK-47 rifle because
new evidence shows that the AK-47 was not the weapon used in the
shooting of the three victims; and (2) the prosecution’s failure to
disclose the exculpatory evidence establishing that the AK-47 rifle
was not used in the shooting incident constituted a violation of
Brady v. Maryland, 373 U.S. 83 (1963).

Respondent argues that the

petition must be dismissed because it is untimely and equitable
tolling does not apply and because it is procedurally defaulted
based on the fact that it was denied as untimely by the California
state courts.

Petitioner argues that his petition is timely because

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he is entitled to equitable tolling and that the state procedural
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bar does not apply.
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A

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The Antiterrorism and Effective Death Penalty Act of 1996

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(AEDPA), which became law on April 24, 1996, imposed for the first

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time a statute of limitations on petitions for a writ of habeas

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corpus filed by state prisoners.

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challenging non-capital state convictions or sentences must be filed

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within one year of the latest of the date on which:

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judgment became final after the conclusion of direct review or the

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time passed for seeking direct review; (B) an impediment to filing

Petitions filed by prisoners

(A) the

United States District Court
For the Northern District of California

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an application created by unconstitutional state action was removed,

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if such action prevented the petitioner from filing; (C) the

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constitutional right asserted was recognized by the Supreme Court,

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if the right was newly recognized by the Supreme Court and made

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retroactive to cases on collateral review; or (D) the factual

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predicate of the claim could have been discovered through the

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exercise of due diligence.

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which a properly filed application for state post-conviction or

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other collateral review is pending is excluded from the one-year

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time limit.

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run from "the date on which the judgment became final by the

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conclusion of direct review or the expiration of the time for

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seeking such review."

28 U.S.C. § 2244(d)(1).

Id. § 2244(d)(2).

Time during

The one-year period generally will

28 U.S.C. § 2244(d)(1)(A).

Petitioner concedes that he filed his federal petition

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beyond the one-year limitations period provided in § 2244 (d)(1)(A),

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but argues that his petition is timely under §§ 2244(d)(1)(B) and

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(d)(1)(D).

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Under § 2244(d)(1)(B), Petitioner argues that a state
impediment was created by the Brady violation because, until 2005,

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he had no knowledge of the ballistics test that would establish his

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innocence.3

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one-year limitations period even using 2005 as the date the

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limitations period began to run, Petitioner also argues that he is

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entitled to equitable tolling after his discovery of the ballistics

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test based on the ineffectiveness of counsel he hired who failed to

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United States District Court
For the Northern District of California

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present Petitioner’s Brady claim or raise any federal arguments in

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his state habeas petition.

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Because his 2013 federal petition was filed beyond the

Section 2244(d)(1)(B) does not apply under the

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circumstances of this case.

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“have dealt almost entirely with the conduct of prison officials who

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interfere with inmates’ ability to prepare and to file habeas

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petitions by denying access to legal materials.”

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Newland, 410 F.3d 1083, 1087-88 (9th Cir. 2005) (rejecting claim

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that unfavorable state appellate opinion was an “impediment” to

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petitioner’s filing a habeas petition).

The few cases applying § 2244(d)(1)(B)

Shannon v.

For example, a petitioner's

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In his petition, Petitioner states that he became aware of the
ballistics test in 2005.
Petition at ¶ 41.
However, in his
declaration submitted with his petition, Petitioner states, “Between
2007 and 2008, is when I first became aware of the ‘new ballistics
evidence’ during [attorney] Mr. Kutchins’ investigation of my case.”
Petition, Ex. H, Scott Dec. at 2. In his reply, Petitioner clarifies
that he first learned of the ballistics test from Mr. Kutchins’
December 30, 2007 letter but, because he did not know when Mr.
Kutchins discovered the test, in his petition, he used 2005 as the
date he became aware of the test. Reply at 9, n.1. Because 2005 is
the date Petitioner uses in his petition, the Court will also use 2005
as the year in which Petitioner became aware of the ballistics test.
However, even if Petitioner became aware of the test in 2007, the
petition would still be untimely.
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inability to access information about the statute of limitations

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deadline may constitute an impediment to the filing of an

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application.

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2000) (en banc).

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limitations period under § 2244(d)(1)(B), the petitioner must show a

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causal connection between the unlawful impediment and his failure to

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file a timely habeas petition.

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499 F.3d 1056, 1060 (9th Cir. 2007) (where petitioner did not know

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about AEDPA’s statute of limitations, his lack of access to case law

Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.

Furthermore, to delay the commencement of the

Bryant v. Arizona Attorney General,

United States District Court
For the Northern District of California

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interpreting the statute of limitations was not impediment under

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§ 2244(d)(1)(B) because it was petitioner’s lack of knowledge of

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statute of limitations, and not his lack of access to case law, that

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caused him to delay filing); see Randle v. Crawford, 604 F.3d 1047,

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1054-55, 1057 (9th Cir. 2010) (finding no impediment to filing

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petition under § 2244(d)(1)(B) due to petitioner’s state-appointed

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counsel’s failure to perfect a timely direct appeal or delay in

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providing petitioner his legal papers because these actions did not

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prevent petitioner from filing a federal petition).

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Petitioner’s argument rests on the fact that the

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prosecutor’s Brady violation constituted unlawful state action that

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impeded his ability to file a habeas petition.4

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Petitioner, there is no Brady violation here.

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Unfortunately for

The prosecutor’s requirement to disclose exculpatory
evidence to a defendant does not continue after the defendant is

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Brady established that due process requires a prosecutor to
disclose material exculpatory evidence to the defendant before trial.
District Attorney’s Office for Third Judicial Dist. v. Osborne, 557
U.S. 52, 68 (2009).
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convicted and the case is closed.

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Third Judicial Dist. v. Osborne, 557 U.S. 52, 68 (2009).

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Osborne, the Supreme Court explained:

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District Attorney’s Office for
In

A criminal defendant proved guilty after a fair trial does
not have the same liberty interests as a free man. At
trial, the defendant is presumed innocent and may demand
that the government prove its case beyond a reasonable
doubt. But, ‘[o]nce a defendant has been afforded a fair
trial and convicted of the offense for which he was
charged, the presumption of innocence disappears.’. . .
Osborne’s right to due process is not parallel to a trial
right, but rather must be analyzed in light of the fact
that he has already been found guilty at a fair trial, and
has only a limited interest in postconviction relief.
Brady is the wrong framework.

United States District Court
For the Northern District of California

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Id. at 69 (citations omitted).
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It is undisputed that the ballistics test at issue was
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conducted after Petitioner’s conviction was final and before
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September 1995, when Petitioner’s former co-defendant entered a
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negotiated plea to manslaughter.

See Patton Dec. at 1.

The

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prosecutor could not have committed a Brady violation during
Petitioner’s trial by not disclosing the ballistics test to
Petitioner, because the ballistics test did not exist at that time.
After the trial, the prosecutor had no obligation to disclose such
information.

Without the Brady violation, Petitioner can point to

no unconstitutional state action that prevented him from filing a
petition.

Therefore, § 2244(d)(1)(B) is inapplicable and Petitioner

cannot rely on it to establish that his petition is timely.
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Petitioner’s argument under § 2244(d)(1)(D) also fails.
Under § 2244(d)(1)(D), the one-year limitation period
starts on the date on which “the factual predicate of the claim or

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claims presented could have been discovered through the exercise of

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due diligence.”

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through diligence could discover) the important facts, not when the

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prisoner recognizes their legal significance.’”

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254 F.3d 1150, 1154 n.3 (9th Cir. 2001).

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require the maximum feasible diligence, but it does require

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reasonable diligence in the circumstances.”

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F.3d 1230, 1235 (9th Cir. 2012) (internal quotations and citations

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omitted).

United States District Court
For the Northern District of California

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The time begins “‘when the prisoner knows (or

Hasan v. Galaza,

“Due diligence does not

Ford v. Gonzalez, 683

Petitioner again relies on the fact that the Brady

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violation prevented him from discovering the factual predicate of

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his claim until 2005.

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violation here.

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doubt and assuming that he first became aware of the ballistics test

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in 2005, his petition is still untimely.

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from 2005 in which to file the instant petition.

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file the instant petition until 2013.

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statute of limitations elapsed by the end of 2006.

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As discussed above, there was no Brady

However, even giving Petitioner the benefit of the

Petitioner had one year
Petitioner did not

Thus, absent tolling, the

Petitioner is not entitled to statutory tolling because he

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did not file a state petition until 2009, years after the statute

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expired.

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2003) (state petition filed after expiration of one-year period

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established in § 2244 does not reinitiate the limitations period).

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Thus, absent equitable tolling, this petition is untimely.

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discussed below, equitable tolling does not apply.

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See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.

As

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Equitable tolling requires that the petitioner establish
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two elements: “(1) that he has been pursuing his rights diligently,

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and (2) that some extraordinary circumstances stood in his way.”

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Bryant, 499 F.3d at 1061 (citation omitted); Holland v. Florida, 130

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S. Ct. 2549, 2562 (2010).

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showing that this "extraordinary exclusion" should apply to him.

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Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).

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petitioner also must show that “the extraordinary circumstances were

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the cause of his untimeliness and that the extraordinary

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circumstances made it impossible to file a petition on time.”

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United States District Court
For the Northern District of California

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Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal

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quotation marks and citations omitted).

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show “any causal connection” between the grounds upon which he

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asserts a right to equitable tolling and his inability to timely

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file a federal habeas application, the equitable tolling claim will

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be denied.

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that his untimeliness was caused by an external impediment and not

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by his own lack of diligence.

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equitable tolling where petitioner was not diligent in that he

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failed to seek any state court relief for six years, or to take

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advantage of available paralegal assistance).

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The petitioner bears the burden of

Gaston, 417 F.3d at 1034-35.

The

Where a prisoner fails to

He must, furthermore, show

Bryant, 499 F.3d at 1061 (no

Petitioner argues that extraordinary circumstances were

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caused by his habeas counsel’s ineffective assistance for failing to

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include a federal constitutional claim in his 2009 state habeas

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petition, thus causing Petitioner to file a pro se state petition

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asserting his Brady claim.

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assistance of counsel may provide the extraordinary circumstances

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necessary to establish equitable tolling, under the circumstances of

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Although in some cases, ineffective

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this case, it does not.

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instances of attorney misconduct may warrant equitable tolling).

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See Holland, 130 S. Ct. at 2564 (serious

First, Petitioner does not have a constitutional right to

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the assistance of counsel or the effective assistance of counsel for

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purposes of a state habeas proceeding.

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481 U.S. 551, 555 (1987) (right to appointed counsel extends to the

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first appeal of right, thus, no right to counsel on discretionary

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appeals or collateral attacks upon convictions); Coleman v.

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Thompson, 501 U.S. 722, 752 (1991) (precluding claim of ineffective

See Pennsylvania v. Finley,

United States District Court
For the Northern District of California

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assistance of counsel where there is no constitutional right to an

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attorney).

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equitable tolling lacks merit.

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For this reason alone, Petitioner’s argument for

Second, even if Petitioner could state such a claim,

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counsel’s performance was effective.

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letter to Petitioner, he stated:

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In Mr. Kutchins’ November 2011

I was retained to investigate and then prepare a habeas
petition on whatever ground appeared viable. I looked for
proof of a due process violation under Brady v. Maryland, but
could not find sufficient evidence to proceed on that basis.
So (as we discussed at the time) I went ahead and filed a
petition based on the only ground legally available: ‘newly
discovered evidence’ of your innocence. The fact that, some
time after you were convicted and sentenced, counsel for your
co-defendants obtained a ballistics test that showed that their
weapons did not fire the fatal shot is not in itself a basis
for a Brady motion. We would need to show—among other
things–that the authorities had that information at some point
when it would have made a difference in your case (meaning,
generally, before you were convicted). I know of no evidence
proving that.
Respondent’s Ex. I, Petitioner’s July 6, 2012 pro se petition to
California Supreme Court, Ex. D.
Counsel further explained that he did not “federalize” the
actual innocence claim because it is not a claim that is recognized

15

1

by the federal courts.

2

Id.

As discussed previously, under the circumstances of

3

Petitioner’s case, no Brady claim can be established.

4

counsel correctly concluded that the evidence did not support a

5

Brady claim and cannot be faulted for failing to assert a claim that

6

has no basis in law.

7

Cir. 2005) (attorney need not file a motion he knows to be meritless

8

on facts and the law); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir.

9

1996).

Therefore,

See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th

Counsel also correctly concluded that a claim of actual

United States District Court
For the Northern District of California

10

innocence is not recognized by the federal courts.

11

Bell, 547 U.S. 518, 555 (2006) (leaving unresolved issue of whether

12

a freestanding claim of actual innocence exists under federal law).

13

See House v.

Therefore, Petitioner’s argument that his counsel’s

14

ineffectiveness constitutes the extraordinary circumstances

15

necessary to establish equitable tolling is meritless.

16
17

4
As noted by Respondent, Petitioner may be arguing that he

18

is entitled to equitable tolling based on actual innocence.

19

argument also lacks merit.

20

This

A claim of actual innocence, if proved, may serve as an

21

equitable exception to the AEDPA statute of limitations.

22

v. Perkins, 133 S. Ct. 1924, 1933 (2013).

23

applies to a severely confined category of cases in which new

24

evidence shows “it is more likely than not that no reasonable juror

25

would have convicted [the petitioner].”

26

513 U.S. 298, 329 (1995)).

27
28

McQuiggin

However, this exception

Id. (citing Schlup v. Delo,

Petitioner’s contention is that he was convicted on an
16

1

aiding and abetting theory dependent on the jury finding that co-

2

defendant Bates was responsible for Ms. Stafford’s death.

3

concludes that the ballistics test showing that the bullet recovered

4

from Ms. Stafford’s body did not match the AK-47 found with Bates

5

means that Bates did not kill Ms. Stafford, which exonerates

6

himself.

7

However, Petitioner’s theory mischaracterizes the

8

prosecution’s case and the evidence against him.

9

his November 2011 letter to Petitioner, explained that the

Mr. Kutchins, in

10
United States District Court
For the Northern District of California

He

ballistics evidence would not have changed the outcome of

11

Petitioner’s case, as follows:

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Remember that the prosecutor’s argument was that the people in
the other vehicle (the SUV) were connected to you and your
friends–so all of you could still have been convicted as
“aiders and abettors” even if the fatal bullet was fired by the
gunman in the SUV. So the new ballistics test did not
“automatically trigger the dismissal” of the murder charges
against Bates, and it would not necessarily have resulted in an
acquittal for you. It might have been helpful to your case, if
it had been known–but it was not.
Respondent’s Ex. I, Petitioner’s July 6, 2012 pro se petition to
California Supreme Court, Ex. D (emphasis in original).
As Respondent points out, Petitioner’s theory rests on
three erroneous assumptions: (1) that his liability as an aider and
abettor was based solely on the acts of Bates; (2) that the murder
victim was wounded by a single gun; and (3) that all of the bullets
which wounded the victim were recovered.
The jury heard the following evidence regarding the aiding
and abetting charge against Petitioner.

Five weapons were recovered

near the area where the police apprehended Petitioner, Hodges and
Weaver or in one of their vehicles.

17

All the weapons had been fired.

1

The victims’ Cadillac had gunshot holes in the door consistent with

2

weapons used by Hodges and Bates.

3

fired two shots at the victims’ Cadillac and was found to have

4

gunshot residue on his hand.

5

Petitioner was armed and personally used a weapon in the commission

6

of the offenses.

7

the scene, the people in it were connected to Petitioner and his

8

companions because there was evidence that all three vehicles were

9

involved in the attack on the Cadillac.

Petitioner told police that he

The jury specifically found that

The prosecutor argued that, if there was an SUV at

Thus, Petitioner’s

United States District Court
For the Northern District of California

10

liability as an aider and abettor was not derived or solely

11

dependent on the actions of Bates.

12

Furthermore, the prosecutor argued that, if there was a

13

second AK-47 that shot at the victims, it also was connected to

14

Petitioner and his companions.

15

connected to Bates could not be connected to the bullet fragment

16

recovered from Ms. Stafford’s body, Petitioner could still be liable

17

as an aider and abettor of the shooter of the second AK-47.

18

Therefore, even if the AK-47

Additionally, the evidence did not support the conclusion

19

that there was only one murder weapon.

20

death was “multiple gunshot wounds.”

21

several bullet fragments recovered from her body could have been

22

attributable to any of the guns recovered.

23

fact that most of the bullets which caused Ms. Stafford’s wounds

24

could have been made by any of the guns recovered by the police, a

25

ballistics test showing that one recovered gun did not match the

26

weapon that fired the fatal shots, does not extinguish Petitioner’s

27

liability as an aider and abettor or establish his innocence.

28

18

The cause of Ms. Stafford’s
The evidence showed that

Thus, in light of the

In

1

short, the ballistics test, even viewed as Petitioner characterizes

2

it, does not make it more likely than not that no reasonable juror

3

would have convicted Petitioner of the charged crimes.

4

Thus, Petitioner has not satisfied the standard for

5

showing actual innocence as enunciated in Schlup and McQuiggin.

6

Because equitable estoppel does not apply to Petitioner’s petition,

7

it is untimely.

8

petition as untimely is granted.

Accordingly, Respondent’s motion to dismiss the

9

B

United States District Court
For the Northern District of California

10
11
12

Respondent also argues that the petition is procedurally
defaulted.
Generally, a federal court “will not review a question of

13

federal law decided by a state court if the decision of that court

14

rests on a state law ground that is independent of the federal

15

question and adequate to support the judgment.”

16

Thompson, 501 U.S. 722, 729 (1991).

17

California’s timeliness requirement is an independent and adequate

18

state ground for denying review of a habeas claim.

19

Martin, 131 S. Ct. 1120, 1128 (2011).

20

denied as untimely Petitioner’s 2011 and 2012 petitions, in which he

21

raised the claims presented here.

22

Consequently, Petitioner’s claims are procedurally defaulted.

Coleman v.

Procedural default under

Walker v.

The California Supreme Court

See Resp.’s Exs. H, I.

23

A federal court will only review a claim disposed of on an

24

independent and adequate state ground if the petitioner shows either

25

“cause and prejudice” or “miscarriage of justice.” McClesky v. Zant,

26

499 U.S. 467, 494 (1991).

27

the petitioner must show (1) cause: that some objective factor

28

Under a “cause and prejudice” analysis,

19

1

impeded efforts to raise the claim at the appropriate proceeding,

2

and (2) prejudice: that the impediment worked to the petitioner’s

3

actual and substantial disadvantage, with errors of constitutional

4

dimensions.

5

“cause and prejudice,” a federal court may still review the claim if

6

a “miscarriage of justice” occurred.

7

333, 339 (1992).

8

applies if the petitioner claims actual innocence.

9

U.S. at 748.

United States District Court
For the Northern District of California

10

Id.

If the petitioner does not meet the standard for

Sawyer v. Whitley, 505 U.S.

The “miscarriage of justice” exception only
See Coleman, 501

To show cause, Petitioner again relies upon his claims of

11

ineffective assistance of counsel and a Brady violation.

12

at 16, 17.

13

Petitioner also relies on his claim of actual innocence.

14

at 18.

Petition

As discussed previously, these claims lack merit.
Petition

This claim also has been shown to be without merit.

15

Therefore, this Court is precluded from reviewing

16

Petitioner’s claims because he has not shown cause and prejudice, or

17

a miscarriage of justice, to excuse his procedural default.

18

Respondent’s motion to dismiss based on procedural default is

19

granted.

20

In his reply, Petitioner also argues that the new evidence

21

shows that he is serving an “unauthorized sentence” because an aider

22

and abettor cannot receive a longer sentence than the perpetrator

23

and AEDPA’s statutory limitations do not apply to this claim.

24

Petitioner provides no authority for this contention nor does the

25

Court know of any.

26

time in his reply, is without merit.

Therefore, this new claim, raised for the first

27
28

20

1

IV

2

In light of the fact that Respondent’s motion to dismiss

3

on the grounds of untimeliness and procedural default is granted,

4

Petitioner’s motion for discovery and for appointment of counsel is

5

denied as moot.

Doc. #14.

6

V

7

For the foregoing reasons, Respondent’s motion to dismiss

8

the petition is GRANTED.

9

appealability will not issue because Petitioner has not made “a

Doc. #9.

Further, a certificate of

United States District Court
For the Northern District of California

10

substantial showing of the denial of a constitutional right.”

11

U.S.C. § 2253(c)(2).

12

reason would find it debatable whether the petition states a valid

13

claim of the denial of a constitutional right, and that jurists of

14

reason would find it debatable whether the district court was

15

correct in its procedural ruling.”

16

478 (2000).

17

Petitioner has not shown that “jurists of

Slack v. McDaniel, 529 U.S. 473,

A separate judgment shall be entered in favor of

18

Respondent.

19

as moot and close the file.

The Clerk is directed to terminate any pending motions

20
IT IS SO ORDERED.

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22
23

DATED

10/02/2013
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\HC.13\Scott 13-0245-MTD Grant.wpd

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