Kelly v. Beard

Filing 39

ORDER by Judge Edward M. Chen Denying 30 Petitioner's Rule 60(b) Motion. (Attachments: # 1 Certificate/Proof of Service)(emcsec, COURT STAFF) (Filed on 2/7/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

JOSEPH KELLY,
Petitioner,

8

JEFFREY BEARD,

Docket No. 30

Respondent.

11
12
For the Northern District of California

United States District Court

ORDER DENYING PETITIONER’S
RULE 60(b) MOTION

v.

9
10

Case No. 15-cv-01746-EMC

On June 20, 2016, the Court dismissed Joseph Kelly‟s pro se petition for writ of habeas

13
14

corpus as barred by the statute of limitations and entered judgment. Just short of a year later, Mr.

15

Kelly filed a motion for relief from the judgment under Federal Rule of Civil Procedure 60(b),

16

asserting several grounds for relief from the judgment. Docket No. 30. Before turning to his

17

specific arguments, it is helpful to summarize the chronology and the analysis in the order of

18

dismissal.

19

A.

20

The Order Of Dismissal
The order of dismissal provided the chronology of relevant events in state and federal

21

court. Below is a truncated version of the chronology presented at more length in the order of

22

dismissal:

23

Mr. Kelly was sentenced in March 2011, after being found guilty of first degree murder.

24

His conviction was affirmed on December 21, 2012. The California Supreme Court denied his

25

petition for review on March 27, 2013. Mr. Kelly also filed eight state habeas petitions, including

26

three filed before the appeal had concluded.

27
28

Before he was even sentenced, Mr. Kelly filed State Habeas Petition # 1 in the Alameda
Superior Court on February 21, 2011; that petition was denied on March 22, 2012 because the

1

appeal had been filed by then and the court file was at the court of appeal. During the pendency of

2

his appeal, he filed two more state habeas petitions. On December 21, 2012, the California Court

3

of Appeal affirmed the judgment of conviction, and denied Mr. Kelly‟s State Habeas Petition # 2,

4

which had been filed on April 16, 2012. On March 27, 2013, the California Supreme Court denied

5

Mr. Kelly‟s petition for review. Mr. Kelly filed State Habeas Petition # 3 in the California

6

Supreme Court on January 30, 2013; the petition was denied on August 28, 2013.

7

Mr. Kelly filed another round of state habeas petitions after his appeal finished. He filed

8

State Habeas Petition # 4 on January 14, 2014 in the Alameda County Superior Court; the petition

9

was denied on March 18, 2014 on several grounds, including that it was untimely. Mr. Kelly filed

denied without comment or citation on June 19, 2014. Mr. Kelly filed State Habeas Petition # 6 in

12
For the Northern District of California

State Habeas Petition # 5 in the California Court of Appeal on May 30, 2014; the petition was

11

United States District Court

10

the California Supreme Court on October 24, 2014; the petition was denied without comment or

13

citation on January 14, 2015.

14

Mr. Kelly filed a third round of habeas petitions in state court, which partially overlapped

15

the second round. Mr. Kelly filed State Habeas Petition # 7 in the California Court of Appeal on

16

September 12, 2014; the petition was denied without comment or citation on October 2, 2014.

17

Mr. Kelly filed State Habeas Petition # 8 in the California Supreme Court on March 24, 2015; the

18

petition was denied on July 15, 2015, with a citation to In re Clark, 5 Cal. 4th 750, 767, 769

19

(1993) (successive petitions not permitted).

20
21

22

Mr. Kelly then filed his federal habeas petition. His federal habeas petition is deemed to
have been filed on April 9, 2015, the date he mailed it to the courthouse.
In the order of dismissal, the Court determined that the limitations period would have

23

begun on June 26, 2013, the day after the judgment became final upon the expiration of the time

24

for seeking direct review. See Docket No. 22 at 3. “However, Mr. Kelly also had State Habeas

25

Petition # 3 pending in the California Supreme Court on June 25, 2013, so the clock on his one-

26

year limitations period which otherwise would have started the next day (i.e., June 26, 2013) was

27

paused until the California Supreme Court denied Habeas Petition # 3 on August 28, 2013.” Id. at

28

4. Once State Habeas Petition # 3 was denied on August 28, 2013, the one-year period in which to
2

1

file a federal habeas petition resumed (with 365 days left).
The order of dismissal mentioned that 28 U.S.C. § 2244(d)(2) provided that the limitations

2
3

period could be tolled for the time during which a “properly filed” state habeas petition was

4

pending. Mr. Kelly received no such statutory tolling under § 2244(d)(2) for State Habeas

5

Petitions # 4, # 5, and # 6 because they had been rejected as untimely and therefore were not

6

“properly filed.” He also received no statutory tolling under § 2244(d)(2) for State Habeas

7

Petitions # 6, # 7 and # 8 because they were filed after the limitations period had expired. (The

8

statutory tolling ruling is discussed in more detail later in this order.)

if the petitioner established “„(1) that he has been pursuing his rights diligently, and (2) that some

11

extraordinary circumstance stood in his way.‟” Docket No. 22 at 6 (quoting Holland v. Florida,

12
For the Northern District of California

The order of dismissal also mentioned that the limitations period could be equitably tolled

10

United States District Court

9

560 U.S. 631, 655 (2010)). Mr. Kelly was not entitled to equitable tolling because he “has not

13

shown any reason to equitably toll the limitations period.” Docket No. 22 at 6.
The order of dismissal rejected Mr. Kelly‟s argument that his claims were not procedurally

14
15

defaulted: “This argument misses the mark because Respondent does not argue that Mr. Kelly‟s

16

federal habeas petition is procedurally defaulted; he only argues that it is untimely.” Docket No.

17

22 at 6.
The order of dismissal concluded that the limitations period expired on August 28, 2014,

18
19

and that Mr. Kelly‟s federal habeas petition filed on April 9, 2015 was filed more than seven

20

months too late. Id. The petition was dismissed as untimely.
This Court and the Ninth Circuit denied a certificate of appealability.

21

22

B.

The Rule 60(b) Motion

23

Mr. Kelly seeks relief from the judgment under Rule 60(b)(1) and (6) based on “excusable

24

neglect or any other reason justifying relief from operation of judgment.” Docket No. 30 at 3. He

25

seeks to set aside the order of dismissal and judgment thereon because, after this action was

26

dismissed, he sought help from another inmate “who pointed out the overlooked facts Kelly

27

should have used to prove his writ is timely.” Docket No. 30 at 3. His Rule 60(b) motion offers

28

several reasons why his petition should not have been dismissed.
3

1

The district court may relieve a party from a final judgment or order for “mistake,

2

inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). For Rule 60(b) purposes,

3

“[e]xcusable neglect „encompass[es] situations in which the failure to comply with a filing

4

deadline is attributable to negligence, and includes „omissions caused by carelessness.‟” Lemoge

5

v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009) (second alteration in original) (quoting

6

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 394 (1993)). The Court assumes

7

for purposes of argument that Mr. Kelly‟s failure on his own to think of reasons he should have

8

offered in opposition to the motion to dismiss amounts to excusable neglect. The Court will

9

consider whether any of those reasons that he has now thought of (with the assistance of another

10

inmate) warrant setting aside the order of dismissal.
1.

12
For the Northern District of California

United States District Court

11

The order of dismissal contained the following analysis for its conclusion that Mr. Kelly

13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
28

Statutory Tolling

was not entitled to any statutory tolling for the pendency of his state habeas petitions:
State Habeas Petition # 4 results in no statutory tolling because it
was denied as untimely. The Alameda County Superior Court
rejected State Habeas Petition # 4 as untimely (as well as on the
merits), with a citation to In re Robbins, 18 Cal. 4th 770, 780
(1998), and other cases. See Docket No. 1-1 at 37. A Robbins
citation is the shorthand used by California courts to signal that a
petition has been rejected as untimely. See Thorson v. Palmer, 479
F.3d 643, 645 (9th Cir. 2007) (denial of petition with citation to
Robbins at the page on which opinion discusses timeliness
determinations was clear denial on timeliness grounds). “When a
postconviction petition is untimely under state law, „that [is] the end
of the matter‟ for purposes of § 2244(d)(2).” Pace v. DiGuglielmo,
544 U.S. 408, 414 (2005) (citing Carey v. Saffold, 536 U.S. 214, 226
(2002)). As in Pace, “[b]ecause the state court rejected petitioner's
[postconviction] petition as untimely, it was not „properly filed,‟ and
he is not entitled to statutory tolling under § 2244(d)(2).” Id. at 417;
see also Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011) (no
statutory tolling for petition rejected as untimely by California
Supreme Court because petition was not “properly filed”; the fact
that California's timeliness rule frequently requires consideration of
diligence does not matter); Thorson, 479 F.3d at 645 (denial of
petition with citation to Robbins at the page on which opinion
discusses timeliness determinations was clear denial on timeliness
grounds and therefore petition was neither “properly filed” nor
“pending”). The Alameda County Superior Court‟s denial of Mr.
Kelly‟s State Habeas Petition # 4 as untimely strips that petition of
any tolling effect. He thus is not entitled to statutory tolling for the
days during which that petition (Petition # 4) was awaiting decision
in the Alameda County Superior Court. Mr. Kelly also is not
4

1
2
3
4
5
6
7
8
9
10

12
For the Northern District of California

United States District Court

11

13
14

entitled to any tolling for his later state habeas petitions in the
California Court of Appeal and the California Supreme Court during
that round of petitions (i.e., State Habeas Petitions # 5 and # 6)
because their summary denials created a presumption, unrebutted by
Mr. Kelly, that those courts agreed with the lower court‟s
determination on the timeliness question. See Curiel v. Miller, 780
F.3d 1201, 1203-04 (9th Cir. 2015); id. at 1204 (when the California
Supreme Court denies the petition summarily, it is presumed that
court agreed with the lower court‟s determination on the timeliness
question unless “strong evidence” rebuts this presumption).
Since State Habeas Petitions # 4, # 5, and # 6 had no tolling effect,
the one-year limitations period for Mr. Kelly to file his federal
habeas petition continued untolled and expired on August 28, 2014,
before State Habeas Petition # 6 was even filed.
State Habeas Petitions # 6, # 7 and # 8, filed after the limitations
period expired on August 28, 2014 -- a year after Petition # 3 was
denied -- resulted in no statutory tolling. Petitions filed after the
limitations period has already expired have no tolling effect under §
2244(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.
2003) (Ҥ 2244(d) does not permit the reinitiation of the limitations
period that has ended before the state petition was filed,” even if the
state petition was timely filed).
Docket No. 22 at 4-6.
Mr. Kelly argues in his Rule 60(b) motion that the California Supreme Court‟s rejection of

15

State Habeas Petition # 6 did not rely on the superior court‟s untimeliness ruling in State Habeas

16

Petition # 4 because the rejection of State Habeas Petition # 4 was based on erroneous factual

17

determinations. Docket No. 30 at 5. He is wrong. As the Court explained in the portion of the

18

order of dismissal block-quoted above, the California Court of Appeal‟s unexplained rejection of

19

State Habeas Petition # 5 and the California Supreme Court‟s unexplained rejection of State

20

Habeas Petition # 6 are deemed to have been based on the same untimeliness conclusion used by

21

the superior court to reject State Habeas Petition # 4. Although the conclusion remains the same

22

today, the Court notes an update for the citation for the Curiel case mentioned in the block quote.

23

The panel decision in Curiel v. Miller, 780 F.3d 1201 (9th Cir. 2015), has been superseded by an

24

en banc decision, Curiel v. Miller. 830 F.3d 864 (9th Cir. 2016) (en banc). On the point relevant

25

to Mr. Kelly‟s case, the law remained the same in the Curiel en banc opinion: an unexplained

26

denial of a habeas petition by the California Supreme Court, with no other action by the California

27

Supreme Court, shows that the California Supreme Court agreed with the reasoning of the lower

28

court. Curiel, 830 F.3d at 871 (“If it agreed with those courts‟ conclusions, the California
5

denied Curiel‟s petition by citing Robbins and Clark.”). Here, the California Court of Appeal

3

denied State Habeas Petition # 5 without any explanation or citation, and the California Supreme

4

Court denied State Habeas Petition # 6 without any explanation or citation. The California

5

Supreme Court‟s decision (like that of the California Court of Appeal) therefore is considered to

6

be a rejection for the same reason as the superior court, i.e., because the petition was untimely.

7

Mr. Kelly‟s disagreement with the superior court‟s determination that his State Habeas Petition # 4

8

was untimely does not aid him here because the federal habeas court does not inquire into the

9

correctness of the state court‟s determination of this matter of state law. “When a postconviction

10

petition is untimely under state law, „that [is] the end of the matter‟ for purposes of § 2244(d)(2).”

11

Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (alteration in original) (quoting Carey v. Saffold,

12
For the Northern District of California

Supreme Court could have simply issued a postcard denial without explanation or citation, or

2

United States District Court

1

536 U.S. 214, 226 (2002)).

13

Mr. Kelly next argues that the California Supreme Court did not rely on the superior

14

court‟s untimeliness determination because the California Supreme Court denied a petition based

15

on the ground that it was successive, not because it was untimely. Docket No. 30 at 5. This

16

argument does not help Mr. Kelly because he is confusing two different rounds of state habeas

17

petitions. The petition that was denied by the California Supreme Court as successive was State

18

Habeas Petition # 8, not State Habeas Petition # 6. As the block quote above explains, the

19

California Supreme Court‟s rejection of State Habeas Petition # 6 is treated as being a rejection for

20

the same reason as the lower court‟s rejection of State Habeas Petition # 4, i.e., untimeliness. The

21

order of dismissal did not assume that State Habeas Petition # 8 had been rejected as untimely by

22

the California Supreme Court. State Habeas Petition # 8 was part of a new round of state habeas

23

petitions, and the fact that the California Supreme Court denied State Habeas Petition # 8 as

24

successive does not have any bearing on the meaning of the California Supreme Court‟s earlier

25

dismissal of State Habeas Petition # 6.

26

In his Rule 60(b) motion, Mr. Kelly also makes several arguments attempting to overcome

27

an assumed procedural default. He argues that one of his claims in a state habeas petition “alleged

28

a miscarriage of justice, not subject to time bar” and therefore the entire petition was “properly
6

1

filed.” Docket No. 30 at 5. He further argues that California‟s procedural bar of untimeliness was

2

inadequate because it was inconsistently applied. Docket No. 30 at 5. These arguments might be

3

appropriate to a procedural default question but are irrelevant to the timeliness of Mr. Kelly‟s

4

federal habeas petition. As the Court explained in the order of dismissal, Respondent did not

5

move to dismiss the federal habeas petition as procedurally defaulted and instead only moved to

6

dismiss the petition as untimely. See Docket No. 22 at 6. See also Bonner v. Carey, 425 F.3d

7

1145, 1148-49 (9th Cir. 2005), amended, 439 F.3d 993 (9th Cir. 2006) (state court‟s imposition of

8

procedural bar of untimeliness, even joined with denial on the merits, means petition was not

9

“properly filed”); id. at 1148-49 (the fact that California provides exceptions to its timely-filing

10

Mr. Kelly further argues that he is entitled to relief from his procedural default because he

12
For the Northern District of California

United States District Court

11

requirement does not prevent an application from being considered not “properly filed”).

was not represented by an attorney during state habeas proceedings. See Docket No. 30 at 5,

13

citing Martinez v. Ryan, 566 U.S. 1 (2012). His reliance on Martinez is misplaced because it does

14

not pertain to the timeliness of a petition. “[T]he equitable rule in Martinez „applies only to the

15

issue of cause to excuse the procedural default of an ineffective assistance of trial counsel claim

16

that occurred in a state collateral proceeding‟ and „has no application to the operation or tolling of

17

the § 2244(d) statute of limitations‟ for filing a § 2254 petition.” Lambrix v. Secretary, Fla. Dep’t

18

of Corr., 756 F.3d 1246, 1249 (11th Cir. 2014); see also Arthur v. Thomas, 739 F.3d 611, 630

19

(11th Cir. 2014) (“As our discussion shows, the Martinez rule explicitly relates to excusing a

20

procedural default of ineffective-trial-counsel claims and does not apply to AEDPA's statute of

21

limitations or the tolling of that period.”).

22
23

Mr. Kelly has not shown that the Court‟s determination that he is not entitled to statutory
tolling for any of his state habeas petitions was incorrect or should be set aside.

24

2.

Equitable Tolling

25

Mr. Kelly argues in his Rule 60(b) motion that he should receive 32 days of equitable

26

tolling for his “mailing mishap” that resulted in State Habeas Petition # 7 going to the California

27

Court of Appeal rather than the California Supreme Court. Docket No. 30 at 11. He is not

28

entitled to any equitable tolling for the mailing mishap because the mailing mishap occurred long
7

1

after the statute of limitations period had expired. Mr. Kelly‟s limitations period had expired on

2

August 28, 2014, a couple of weeks before State Habeas Petition # 7 was mailed on September 12,

3

2014. An event that occurs after the limitations period has expired cannot support equitable

4

tolling because the basic reason for equitable tolling is to excuse a petitioner from missing a

5

deadline because “some extraordinary circumstance stood” in the way of him meeting that filing

6

deadline. See Holland, 560 U.S. at 655. Moreover, Mr. Kelly has not explained why it made any

7

difference that the petition went to the wrong court. If the petition had been mailed within the

8

limitations period, the petition would support statutory tolling, regardless of the state court to

9

which it was sent. He is not entitled to tolling, regardless of which court ultimately received that

10

petition.
Mr. Kelly also argues in his Rule 60(b) motion that he should receive four months of

12
For the Northern District of California

United States District Court

11

equitable tolling based on the limited law library access he had at the prison in Susanville from

13

September through December 2013. See Docket No. 30 at 5, 7, 10, 11.1 In his reply in support of

14

the Rule 60(b) motion, Mr. Kelly muddles the dates, now claiming he experienced intermittent

15

access from April 2011 until August 2014, and states that, from August 2013 to March 2014, [he]

16

was denied full access to the law library.” Docket No. 38 at 11. He admits that he was able to

17

access the library four or five times during this period. See Docket No. 38 at 3, 11. He does not

18

state how many other times he actually attempted to access the law library during the time period.

19

He also does not show a causal connection between his alleged inability to visit the library more

20

frequently and his failure to timely file his federal petition. The Ninth Circuit has clearly stated,

21

“Ordinary prison limitations on [petitioner‟s] access to the law library and copier . . . were neither

22

„extraordinary‟ nor made it „impossible‟ for him to file his petition in a timely manner. Given

23

even the most common day-to-day security restrictions in prison, concluding otherwise would

24

permit the exception to swallow the rule . . . .” Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir.

25
1

26
27
28

In his reply in support of the Rule 60(b) motion, Mr. Kelly muddles the dates, now claiming he
experienced intermittent access from April 2011 until August 2014, and states that, from August
2013 to March 2014, [he] was denied full access to the law library.” Docket No. 38 at 11. He
does declare, however, that he may have received 4-5 days of access during this period. Id. And
he declares that he had access to outside resources: he “relied on Stanford Law and family
members to provide the necessary case law to conduct and complete my research.” Id.
8

1

2009). As in Ramirez, Mr. Kelly offers no explanation regarding how his limited law library

2

access during the last four months in 2013 made it impossible for him to file a timely federal

3

petition, the deadline for which was in August 2014. See id.; see, e.g., Chaffer v. Prosper, 592

4

F.3d 1046, 1049 (9th Cir. 2010) (per curiam) (prisoner‟s pro se status, law library missing a

5

“handful” of reporter volumes, and reliance on inmate helpers who were transferred away or too

6

busy to attend to his petitions are not extraordinary circumstances “given the vicissitudes of prison

7

life”). Mr. Kelly was able to file state habeas petitions starting in January 2014, which suggests

8

the limitations did not make it impossible to file a federal petition on time. See Ramirez, 571 F.3d

9

at 998 (considering fact that prisoner made substantial legal filings in state court during relevant

him to file federal petition on time). Further, even if he could present evidence that he did not

12
For the Northern District of California

time period in concluding that limited law library and copier access did not make it impossible for

11

United States District Court

10

receive any law library access during those four months, it would not change the outcome here

13

because four months of equitable tolling would not make his federal petition timely, given that his

14

federal petition was filed more than seven months too late.
In his reply in support of the Rule 60(b) motion, Mr. Kelly adds an argument that he

15
16

should receive equitable tolling based on appellate counsel‟s “excessive delay in providing him

17

the October 2012 summary of Erick Jensen.” Docket No. 38 at 4. That summary was provided by

18

appellate counsel to Mr. Kelly in January 2013, see Docket No. 30 at 143-44. But the limitations

19

period had not even begun by that date (because the direct appeal was still pending), and therefore

20

could not be equitably tolled.2

21

3.

Alternative Starting Date For Limitations Period

22

Mr. Kelly urges that the court should use § 2244(d)(1)(D)‟s delayed starting date -- rather

23
2

24
25
26
27
28

Mr. Kelly waited until his reply to add some other arguments, as well. He contends that a
petition may be considered even if the statute of limitations deadline has been missed due to his
actual innocence. But he makes no showing whatsoever of actual innocence. Apart from the
alleged recanting witness, multiple witnesses gave testimony that he was the shooter. Mr. Kelly
does not come close to showing actual innocence. Mr. Kelly also raises in his reply that he is
entitled to the mailbox rule for his state petitions, as well as his federal petition. To the extent the
signature dates or mailing dates were on the materials in the file, the Court did apply the prisoner
mailbox rule to the state as well as federal petitions. He has not identified any petition that the
Court failed to apply the prisoner mailbox rule where there is a signature date or mailing date in
the record.
9

1

than the date the judgment became final, see § 2244(d)(1)(A) -- for his claim that the prosecution

2

presented false evidence, i.e., the testimony of Erick Jensen. Mr. Jensen allegedly recanted after

3

trial when interviewed by Mr. Kelly‟s investigator. Mr. Kelly learned of the recantation sometime

4

at the end of October 2012, when his investigator provided a written report of his interview of Mr.

5

Jensen, but Mr. Kelly did not obtain a signed declaration from Mr. Jensen until March 9, 2015.

6

See Docket No. 30 at 25, 70.3
Under § 2244(d)(1)(D), the one-year limitations period does not start until “the date on

7
8

which the factual predicate of the claim or claims presented could have been discovered through

9

the exercise of due diligence.” The factual predicate of a claim is based on a habeas petitioner‟s

Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998); see also Bunney v. Mitchell, 241 F.3d

12
For the Northern District of California

knowledge of the facts supporting the claim, and not the evidentiary support for the claim.

11

United States District Court

10

1151, 1155 (9th Cir.), opinion withdrawn on other grounds, 249 F.3d 1188 (9th Cir. 2001)

13

(“Petitioner's argument in this case conflates her knowledge of the „factual predicate‟ of a claim

14

with the development of sufficient evidentiary support to prove the claim. But the text of AEDPA

15

answers Petitioner's argument; under subsection (d)(1)(D), the statute of limitations begins to run

16

when a petitioner knows (or should know through the exercise of due diligence) the facts on which

17

a claim is predicated, without reference to when (or if) she can muster evidence sufficient to prove

18

that claim.”).
Mr. Kelly argues that the statute of limitations should start on March 9, 2015, when he

19
20
21

22
23
24
25
26
27
28

3

Mr. Kelly‟s claims about the allegedly false testimony from Mr. Jensen were first presented in
State Habeas Petition # 4. The superior court determined that the claims were untimely because
the claims had been known to Mr. Kelly since “sometime at [the] end of October 2012, when an
investigator provided a written report of his interview of Eric Jensen,” yet Mr. Kelly had
unjustifiably waited an additional 15 months to file State Habeas Petition # 4. Docket No. 30 at
70. As an alternative basis to reject the claims about Mr. Jensen‟s testimony, the superior court
determined that Mr. Kelly failed to state a prima facie case because he “failed to prove by a
preponderance of the evidence that the trial testimony by Jensen was false and that there is a
reasonable probability that, had it not been introduced, the result would have been different. “ Id.
The superior court noted that Mr. Kelly had submitted only a “partial summary of the interview of
Jensen,” and had not provided a declaration from Mr. Jensen or even a declaration by the
investigator summarizing his interview of Mr. Jensen. Id. at 71. The superior court further
determined that, even assuming arguendo that Mr. Kelly had met his burden to show that false
evidence had been presented at trial, he had not demonstrated a reasonable probability of a
different result had the evidence not been introduced at trial. Id.
10

knew the important facts supporting the claim before his appeal even concluded and before the

3

limitations period under § 2244(d)(1)(A) even began; that is, he knew of Mr. Jensen‟s alleged

4

recantation no later than October 2012, when counsel informed him about the investigator‟s

5

report, or no later than January 2013, when counsel sent him the report -- and both of those dates

6

were before his direct appeal concluded in March 2013 with the denial of his petition for review in

7

the California Supreme Court. See Docket No. 38 at 10. The limitations period under §

8

2244(d)(1)(D) is of no help to him because that limitations period would have started in October

9

2012 -- before his appeal even concluded -- when he learned or should have learned of the factual

10

predicate (i.e., that Mr. Jensen allegedly had recanted). The petitioner‟s efforts to gather evidence

11

for a claim do not delay the deadline for him to get to federal court. See Flanagan, 154 F.3d at

12
For the Northern District of California

obtained a declaration from Mr. Jensen. Docket No. 30 at 25-26. But he does not dispute that he

2

United States District Court

1

199 (§ 2244(d)(1)(D) “does not convey a statutory right to an extended delay . . . while a habeas

13

petitioner gathers every possible scrap of evidence” that might support a claim); Earls v.

14

Hernandez, 403 F. Supp. 2d 985, 989 (C.D. Cal. 2005) (“„It is the actual or putative knowledge of

15

the pertinent facts of a claim that starts the clock running; the accrual of the statute of limitations

16

does not await the collection of evidence which supports the facts.‟”) (quoting Brooks v. McKee,

17

307 F. Supp. 2d 902, 906 (E.D. Mich. 2004)); see generally United States v. Battles, 362 F.3d

18

1195, 1198 (9th Cir. 2004) (no delayed start of limitations period under § 2255 for federal

19

petitioner who was not diligent; even though he did not have access to trial transcripts, the facts

20

supporting claims that occurred at the time of his conviction could have been discovered if he “at

21

least consult[ed] his own memory of the trial proceedings”). Mr. Kelly therefore is not entitled to

22

a later starting date under 28 U.S.C. § 2244(d)(1)(D) for any of his claims.

23

C.

24

No Certificate Of Appealability
A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in

25

which "jurists of reason would find it debatable whether the petition states a valid claim of the

26

denial of a constitutional right and that jurists of reason would find it debatable whether the

27

district court was correct” in its ruling in the order denying the petition for writ of habeas corpus

28

or in this order. Slack v. McDaniel, 529 U.S. 473, 484 (2000). The denial of the certificate of
11

1

appealability is without prejudice to Mr. Kelly seeking a certificate from the United States Court

2

of Appeals for the Ninth Circuit.

3

D.

The motion for relief from the order of dismissal and judgment is DENIED. Docket No.

4
5

Conclusion

30.

6
7

IT IS SO ORDERED.

8
9
10

______________________________________
EDWARD M. CHEN
United States District Judge

12
For the Northern District of California

United States District Court

11

Dated: February 7, 2018

13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
28

12