Dixson v. Beard

Filing 22

ORDER by Judge Wilken granting 14 Motion to Dismiss; denying 21 Motion for Evidentiary Hearing.(cwlc1, COURT STAFF) (Filed on 3/31/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. 14-05069 CW
DEMETROIS TERRELL DIXSON,
Petitioner,

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United States District Court
For the Northern District of California

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ORDER GRANTING
MOTION TO DISMISS
THE PETITION AS
UNTIMELY

v.

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SECRETARY, Department of
Corrections and Rehabilitation,

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Respondent.

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________________________________/

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In March 2006, an Alameda County jury convicted Petitioner

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Demetrois Dixson of multiple felonies, including forcible sexual
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offenses against his girlfriend, Amitha.1

These charges included

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forcible rape, unlawful sexual intercourse with a minor, battery

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with serious bodily injury, corporal injury to a cohabitant,

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forcible sodomy, and forcible oral copulation.

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filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

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Petitioner has

§ 2254, challenging his state criminal conviction and asserting
that he is actually innocent.

Respondent has filed a motion to

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Amitha is referred to as “A.” in some documents in the
record, “Amitha H.” in others and by her full name in still
others. This order will refer to her as “Amitha.”

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dismiss the petition, arguing that it is procedurally defaulted

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and untimely.

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the parties’ papers the Court finds that the habeas petition is

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untimely and GRANTS Respondent’s motion to dismiss.

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petition is untimely, the Court does not reach Respondent’s

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Petitioner has filed a reply.

Having considered

Because the

argument that Petitioner’s claims are procedurally defaulted.

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BACKGROUND
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The following background facts, including footnotes, are

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For the Northern District of California

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taken from the California Court of Appeal decision denying

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Petitioner’s direct appeal.

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Penal Code.

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All citations are to the California

Prosecution Evidence
A. grew up in Lancaster, California, a small town
in Los Angeles County. Her parents, who were from Sri
Lanka, were very protective of her and did not allow
her to date in high school. In August 2004, when she
was 17 years old, A. began her freshman year at the
University of California, Berkeley, where she lived in
a dorm room. Her close friend Anita Suri also enrolled
at Berkeley.
One afternoon in late September 2004, A. was
approached by appellant in a campus yogurt shop. They
spoke briefly and exchanged telephone numbers.
Appellant was 28 years old at the time, although he
told A. he was 21. He called her a few minutes after
leaving the shop and A. agreed to join him for dinner.
Appellant bought a pizza and lemonade at the
supermarket and then drove A. to a sparsely furnished
apartment in Fairfield. After they finished the pizza,
appellant kissed A., who felt nervous but did not say
anything. He tried to take her pants off, but she told
him she didn’t want to do anything. Appellant removed
her pants, pushed her legs open and forced her to have
unprotected intercourse. He refused to drive her home
when he had finished, claiming to be tired. The next
morning, he wanted to have sex again, but A. told him
she needed to get to class. He drove her back to
Berkeley. A. did not believe she had been raped because
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appellant had not used violence, and she was too
embarrassed to tell anyone what had happened. (Counts
1 & 2, forcible rape (§ 261, subd. (a)(2)) and unlawful
intercourse with a minor (§ 261.5, subd. (c)).)
Appellant called A. and they saw each other again.
They argued about whether appellant had raped her on
their first date, but A. continued to see appellant
because he was nice to her in other ways. She did not
tell her parents about the relationship because they
would have disapproved. Over time, appellant became
abusive, and A. became estranged from her friends.
In October 2004, A. met appellant in San Diego.
After an argument in a restaurant about how little she
ate, he left her in the restaurant and drove away. He
later returned and told her he and some friends would
rape her and leave her in a ditch. Later during the
visit to San Diego, appellant poured a drink over A.
and wrapped a pillow case around her neck so tightly
she could not breathe. Once, while in a shopping mall
in Fairfield, appellant checked the memory of A.'s cell
phone and saw that her old boyfriend had called. He
spat in her face and left her stranded at the mall;
when he returned and discovered her talking on her
phone to a friend he grabbed the phone and told the
friend not to call A. again.
Shortly before Thanksgiving, A. learned she was
pregnant. Appellant seemed happy at first, but after
an argument told her to get an abortion. A. suffered a
miscarriage a few days later. A. told appellant she
wanted to break up, but he threatened her with violence
so she continued to see him. Students in the dormitory
sometimes heard A. cry as appellant yelled at her and
threatened her. At least one student noticed bruises
on A.’s neck, face and arms.
On December 21, 2004, appellant and A. argued
about some charges appellant had run up on her cell
phone. Appellant pushed and choked A., then grabbed
one of her fingers and squeezed her cheeks for about 30
seconds, until the inside of her cheeks were cut by her
teeth. A. started to spit up blood and they continued
to argue for about half an hour. The dormitory's
resident director, Cora Gerdes, came to the door after
another resident reported that someone was crying and
yelling in A.’s room. Gerdes spoke privately with A.,
who said she was crying because she was feeling very
ill, but claimed not to need help. Appellant had told
A. that if she ever reported him, he would come after
her. (Count 3, battery with serious bodily injury (§
243, subd. (d)).)
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A. spent the winter break at her parents’ house in
Lancaster. Her jaw was still swollen from appellant’s
attack and the skin of her interior cheeks seemed to be
infected. Her parents took her to see their family
doctor, but she could not explain the injuries to him
and said she might have caught mononucleosis. The
doctor believed her symptoms were consistent with
either mononucleosis or trauma.
Appellant called A. nearly every day over her
break to threaten her and ask her for money. He told
her once that if she didn’t send money, he and his
cousins would come to her house with a gun. Appellant
also called A.’s mother and, using different names,
demanded to know A.’s whereabouts. When she went to
the airport to fly back to Berkeley, appellant picked
her up and drove her to San Diego, causing her to miss
class. She gave him money and got more from her
parents.
After winter break, appellant began living in A.’s
dorm room full time. A.’s roommate Jessica Chan saw
appellant and A. argue several times. Once A. called
the police to get appellant out of the room, but
appellant hung up the phone. A. did enlist the campus
police in helping her get appellant’s things out of her
room, but she did not tell them about the violence.
Afterwards, appellant drove her around and yelled at
her about contacting the police. He hit her and
squeezed her forehead with his hands, but later
apologized and put bandages on the cuts he had caused.
On January 25, 2005, A. took a handful of Tylenol
pills because she “couldn’t deal with it anymore.”
Appellant took her to the emergency room, where she
said she had taken the pills because her stomach had
been hurting. A nurse pulled A. aside, commented that
appellant was very controlling, and asked whether she
had taken the pills because of appellant.
On February 17, 2005, appellant became angry with
A. when her friend Anita arrived to watch television
while he was still in bed. He asked Anita to wait
outside and squeezed A.’s cheeks until they were
bleeding on the inside and she was choking on her own
blood. He punched her in the leg and told her he hoped
she couldn’t walk. (Count 4, corporal injury on a
cohabitant (§ 273.5, subd. (a)).)
After this incident, A. told Anita everything that
had been going on. Anita did not call the police
because A. wanted to handle it her own way. Later that
month, appellant punched A. in the mouth and caused her
lip to bleed after she told him she was going out with
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Anita. When they stopped at a service station to get
ice for her lip, he hit her again because she did not
tell him the ice was melting.
On March 13, 2005, appellant dragged A. downstairs
from her dorm room after he had to spend the night in
his car because her roommate Jessica was working on a
term paper. He hit her in the elevator, dragged her
into the recycling room, and put his knee on her neck.
When he had finished his attack, A. had scratches on
her face and was bleeding. (Count 5, corporal injury
on a cohabitant (§ 273.5, subd. (a)).)
Appellant stayed in A.’s dorm room while A. went
home to Lancaster on spring break. He looked on her
computer and saw she had been corresponding by email
with her friend Justin Johnson. Appellant called A.
and yelled at her for talking to another man and then
drove to Lancaster and began leaving messages on her
cell phone. Appellant told her that if she did not
meet him he would crash into her parents’ car or throw
a brick through their window. A. agreed to meet
appellant at a motel.
When she arrived at the motel, appellant told A.
to get into his car, where he threw down copies of A.’s
email messages with Justin and yelled at her for
telling other people their business. He hit her in the
mouth, causing it to bleed. When she refused to give
him Justin’s phone number, he grabbed her leg and
squeezed it, stating he would rip her flesh out.
Appellant drove back to the motel and told A. to go
into the room, which she did, because she knew he would
follow her if she did not. Inside the room, appellant
hit her on the face and told her she “better give him
some to calm him down.” A. took off her clothes
because she was afraid. She was crying and her mouth
was bleeding, but appellant forced her to orally
copulate him. After that, he raped her, sodomized her
and urinated on her, hitting her in the face with an
open hand. Appellant hit her again on the side of her
head as she was getting dressed to leave. (Counts 6, 7
& 8, forcible rape (§ 261, subd. (a)(2)), forcible
sodomy (§ 286, subd. (c)(2)), forcible oral copulation
(§ 288a, subd. (c)(2)).) A. went to dinner with Anita
and another friend that night, both of whom urged her
to report appellant to the police. She told them she
wanted to handle things her way, without angering
appellant.
In late March, A. learned she was pregnant again
and told appellant. He pushed her into a closet during
an argument on that same night. While driving her
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around the next day, he punched her in the face when
she could not remember something he had said. A.
emailed her friend Justin and asked to talk, but when
he tried to call her appellant took the phone away and
told him to stop calling. Appellant repeatedly
threatened Justin and told him to stay away from A.
On April 1, 2005, appellant took a trip to San
Diego. Before he left, he and A. argued because he
wanted to have sex and she said she did not because her
stomach hurt. Appellant promised to go slowly and not
hurt her, but when they had sex A. cried the whole time
and said he was hurting her. (Count 9, forcible rape
(§ 261, subd. (a)(2)).)
On April 5, 2005, A. met with resident director
Gerdes, who wanted to ask her about reports that
someone else was living in her dorm room. A. told
Gerdes about appellant’s violent conduct, but said she
did not want to go to the police without first learning
how long appellant could be held in custody. Gerdes
notified security in the dormitory that appellant was
no longer welcome there.
Appellant checked A.’s voicemail and learned of
her meeting with Gerdes. He called her from San Diego
and said he was going to fly to Berkeley that night,
punch her in the face and stomach, and give her a
“Demetrois abortion.”
A. told Gerdes about the call
and spent the night with Anita. Appellant flew back to
the Oakland airport that same evening, where he called
A. and told her to pick him up. A. refused to pick him
up. (Count 10, criminal threats (§ 422).)
Appellant went to A.’s dormitory that evening and
was told by Gerdes to leave. He responded that A. was
his girlfriend, that she was pregnant with his child,
and that they were just having a hard time. Gerdes
overheard appellant yelling at A. over the phone.
Appellant called A.’s parents in Lancaster later that
same evening and told them he and A. were in love, that
A. was pregnant, and that she was afraid to tell them
of the relationship because she knew they would not
approve.
Appellant returned to A.’s dorm room the next
morning, where Anita answered the door while A.
remained inside. Appellant spoke to Anita for several
hours in the lounge, telling her that everything was
unfair and he wanted to work things out with A. Anita
told appellant she would talk to A. on his behalf.
With Gerdes’s help, the girls sneaked out of the dorm
room and met A.’s mother, who had arrived in Berkeley
that morning.
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A. reported appellant to the police and obtained a
restraining order. Appellant was arrested and was
served with the restraining order on April 12, 2005,
while he was in jail. Appellant called A. on April 13
and asked her to drop the charges. A. told him he
should not be calling her. He telephoned her several
more times that day while she was with her mother and
two police officers. One of the officers got on the
telephone and told appellant that he had a restraining
order and should not be contacting A. Appellant said
he was confused because she had called him. (Counts
11, 12 & 13, misdemeanor disobeying a domestic
relations restraining order (§ 273.6, subd. (a)).)
On April 16, 2005, Anita received about 10
telephone calls from appellant, in which he told her he
was innocent and she was the only one who could talk to
A. about changing things. Anita pretended to agree
with appellant because she was afraid of him. A woman
called her from a blocked telephone number a few
minutes later and said, “Demetrois knew where [Anita]
lived in Berkeley and at home.” Appellant called again
and told Anita he was recording their conversation;
Anita again pretended to agree with appellant about his
version of various events because she was afraid of
him. (Count 14, attempting to dissuade a witness (§
136.1, subd. (a)(2)).)
Also on April 16, appellant left messages on A.’s
voice mail in which he played portions of his
conversation with Anita and tried to discourage her
from prosecuting the case. He did not stop calling her
until June. (Count 15, dissuading a witness from
prosecuting a crime (§ 136.1, subd. (b)(2)), and count
16, knowingly violating protective order (§ 166, subd.
(c)(1)).)
A. was not the first woman appellant had
victimized during an intimate relationship. In 2000,
he met L.D.2 in a shopping mall and they began dating.
A month or so after they met, he began hitting her
regularly. He once put a gun to her head and would
frequently squeeze her mouth so hard that the inside of
her mouth and jaw would be sore. Despite the abuse,
the couple married. The abuse escalated and in 2003,
L. learned she was pregnant. Appellant continued to
hit her during the pregnancy and threatened to do a

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L.D. and Jamie A. were called as witnesses by the
prosecution and testified to prior acts of domestic violence
admissible under Evidence Code section 1109.
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number of violent acts to cause a miscarriage. L. gave
birth and, although she tried to give appellant a
chance, the abuse continued. She eventually left
appellant in early 2004.
Appellant met Jamie A. in February 2004 when he
introduced himself to her in a parking lot. They had
moved in together within a few weeks and she continued
to see him until October 2004. About a month into the
relationship, appellant became abusive. He threw a
speaker at her during an argument, cutting her lip, and
once grabbed her cheeks and squeezed so hard that her
teeth cut the inside of her mouth. Jamie finally broke
off the relationship and reported her car stolen when
appellant refused to return it to her. By that time,
appellant was dating A., who posted bail when appellant
was caught driving Jamie’s car and was arrested for
driving a stolen vehicle.
According to Dr. Linda Barnard, an expert on
domestic violence, one of the misconceptions about a
domestic violence situation is that women who don’t
leave the relationship either enjoy it or are
exaggerating the extent of the abuse. Domestic
violence is about power and control, and the
perpetrator usually denies responsibility and suggests
instead that the victim is the one to blame. The
typical cycle of abuse involves tension building, then
verbal abuse, then pushing or shoving, followed by more
acute physical, sexual or emotional abuse. After this
apex of conflict, there is a honeymoon period where the
abuser apologizes. This is especially damaging for the
victim, who comes to deny her own reality. Many
victims of domestic violence exhibit the symptoms of
post-traumatic stress disorder, which places them in a
numbed emotional state. They also lie about or
minimize the abuse because of their “traumatic bond”
with the abuser and because they are embarrassed about
submitting to such treatment.
Defense Evidence
Appellant testified on his own behalf and denied
that he was ever violent with A., Jamie or L., nor did
he ever force A. to have sex. A. was very jealous
about other women, and he thought she might be lying
about her child being his because she wanted to get him
to assume the role of the baby’s father. Appellant did
not read the restraining order A. obtained because he
was frustrated and did not know what was going on. In
his view, his relationship with A. had been “perfect.”

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People v. Dixson, 2008 WL 1813175, *1-*6 (Cal. Ct. App.).

In

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2006, Petitioner was convicted of three counts of forcible rape,

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one count of unlawful sexual intercourse with a minor, one count

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of battery with serious bodily injury, two counts of corporal

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injury to a cohabitant, one count of forcible sodomy, one count of

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forcible oral copulation, one count of making criminal threats,

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three counts of disobeying a domestic relations court order, one
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count of attempting to dissuade a witness from appearing in court,

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For the Northern District of California

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one count of dissuading a witness from assisting the prosecution

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and one count of disobeying a stay away order.

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the California Court of Appeal affirmed the convictions but

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remanded for resentencing.

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On April 22, 2008,

Id. at *16.

On May 12, 2008, represented by counsel, Petitioner filed a

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petition for review, raising the same issues he raised in his
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direct appeal, in the California Supreme Court.

The California

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Supreme Court summarily denied the petition on July 23, 2008.
Respondent’s Ex. 3.
On May 24, 2012, Petitioner filed a habeas petition in the

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Alameda County Superior Court, asserting that he had new evidence

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that proved his actual innocence of Counts 6, 7 and 8, forcible

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rape, forcible sodomy and forcible oral copulation.3

Respondent’s

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Ex. 5.

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First, Petitioner attached a declaration from a man named Shelton

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Wadsworth, who declared that he had met Petitioner on the prison

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yard in 2010.

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Petitioner attached several documents to his petition.

Respondent’s Ex. 5.

Wadsworth declared that, when

he met Petitioner, he thought Petitioner looked familiar.

While

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they were talking, Petitioner described his car, a Mercedes Benz.
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Wadsworth declared that, after hearing the description of the car,

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For the Northern District of California

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“right then and there” he remembered how he knew Petitioner.

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Wadsworth declared that he remembered Petitioner because he had

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seen him five years earlier when Petitioner drove away from a

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Motel 6 in Lancaster in a nice car.

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Wadsworth decided that he

would rob Petitioner because Petitioner was alone in the car, so

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he followed Petitioner to a car wash and then to a Sprint store.
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Wadsworth declared that that evening, he saw Petitioner again in
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Palmdale and followed him to a different Motel 6 in Palmdale.

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Wadsworth saw a woman get out of Petitioner’s car and go into the

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office.

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park by a room.

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Wadsworth parked next to Petitioner’s car and waited for over an

The woman returned to the car and Petitioner drove to
The woman and Petitioner went into the room.

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Respondent notes that, between 2010 and 2013, Petitioner
filed multiple pro se petitions in the Alameda County Superior
Court, the California Court of Appeal and the California Supreme
Court. See Respondent’s Ex. 4. However, none of those petitions
was attached to the instant federal habeas petition, nor does
Petitioner argue that they are relevant to the instant petition or
that they tolled the federal statute of limitations.
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hour, when another car drove up.

The woman came out of the room

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and greeted the two girls in the car.

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woman and the girls were initially in a good mood but had some

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sort of argument.

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him a photograph of Amitha, and he was “100% sure” the woman in

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Wadsworth stated that the

Wadsworth declared that Petitioner later showed

the picture was the woman he saw leaving the motel room five years

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earlier.
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Petitioner also submitted a purported receipt for a room at a

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United States District Court
For the Northern District of California

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Motel 6 in Palmdale for the night of March 23, 2005 in Amitha’s

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name as well as a purported receipt for a room at the Motel 6 in

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Lancaster for the night of March 22, 2005 in Petitioner’s name.

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Petitioner also submitted a declaration stating that he was

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recanting his trial testimony that he had driven Amitha to a motel

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in Lancaster.

Instead, he declared, he took Amitha to a motel in

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Palmdale.
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In addition, Petitioner submitted a letter from a private

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investigator describing an August 6, 2010 conversation with Anita

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Suri.

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was to ask regarding Petitioner’s case, but that he did not know

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the context of the questions.

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The investigator stated that he had a list of questions he

Among other things, the private

investigator wrote that Suri told him that she had seen Amitha at

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a Motel 6 “on Palmdale Boulevard” on an unspecified date and that
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Amitha had not appeared to be injured or upset at the time.

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Finally, Petitioner submitted a typed letter, purportedly sent by

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Amitha to Petitioner’s mother.

The letter expressed remorse about
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Petitioner and stated that Amitha lied about Petitioner forcing

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her to have sex and hitting her because she was scared of her

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parents.

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On July 23, 2012, Judge Horner of the Alameda County Superior
Court denied the petition for habeas corpus “for failure to state
a prima facie case for relief.”

Respondent’s Ex. 6.

A footnote

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to the order stated, “The ‘declarations’ submitted in support of
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For the Northern District of California

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the Petition are not originals.”

Id.

On November 1, 2012 Petitioner filed an amended habeas

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petition in the Alameda County Superior Court, reiterating his

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claim of actual innocence and raising for the first time an

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ineffective assistance of counsel claim, alleging that trial

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counsel was ineffective for failing to investigate and discover

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the evidence of Petitioner’s actual innocence.

At the bottom of

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the purported letter from Amitha, mailed to his mother, Petitioner
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typed,
On May 24, 2012 the superior court of Alameda County
denied the state habeas corpus per case #150971 because
petitioner did not send the original letter of Amitha []
in support of the petition. I Demetrois T. Dixson
declare under the penalty of perjury that the above is
in fact the original letter of Amitha [].
Respondent’s Exhibit 7.

Below the statement is Petitioner’s

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notarized signature.
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On January 15, 2013, Petitioner filed a motion to amend his

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petition.

Petitioner asserted that his investigator had

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interviewed Suri’s mother, Neena Suri, in November 2012, and that

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Neena Suri told the investigator that she had hosted a party for
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her daughter and some of her friends in March 2005.

Neena Suri

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also purportedly stated that Amitha attended the party and did not

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appear to have any injuries.

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For the Northern District of California

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On March 29, 2013, Judge Horner denied the amended habeas
petition, stating,
The Petition is denied as untimely. Petitioner
fails to establish that he diligently pursued his
claims, fails to establish good cause for the
substantial delay, and fails to establish that either of
his claims fall within an exception to the untimeliness
bar.
The Petition is also denied for abuse of the writ.
Respondent’s Ex. 9.

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On June 13, 2013, Petitioner filed another amended habeas
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petition in the Superior Court and a challenge to Judge Horner for

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cause.

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and questioned Judge Horner’s previous ruling.

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that his claims were not untimely and that, if they were, it was

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because of his trial counsel’s ineffective representation.

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Petitioner argued that Judge Horner was biased against him
Petitioner argued

Finally, Petitioner resubmitted the purported letter from Amitha,

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along with a May 22, 2013 declaration from his mother, stating
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that in February 2012, she received a telephone call from a
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blocked number and that the caller identified herself as Amitha.

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The caller told Petitioner’s mother that she couldn’t talk but

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that she felt very bad about what happened to Petitioner and that

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she would write a letter explaining herself.

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declared that she received the letter a week later.

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Ex. 10.

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Petitioner’s mother
Respondent’s

In an order dated August 2, 2013, Judge Horner denied the

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challenge for cause, summarily denied the amended habeas petition

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and advised Petitioner that he could file a habeas petition in the

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Court of Appeal.

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Respondent’s Ex. 11.

On October 21, 2013, Petitioner filed a further amended
habeas petition in the Superior Court and, on November 13, 2013,
he filed supplemental materials in support of the petition.4

On

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December 19, 2013, Judge Horner denied the further amended

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petition as “an abuse of the writ.”

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Horner noted that Petitioner’s only new evidence and argument was

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evidence regarding Hindu culture and argument that Amitha was

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motivated to lie about her sexual activity to avoid being disowned

14

by her Hindu parents.

Respondent’s Ex. 12.

Judge

Judge Horner further noted that a habeas

15
petitioner is required to present all of his claims in a single
16
petition and that presenting previously presented claims in
17
18

subsequent petitions is generally an abuse of the writ.

Finally,

19

Judge Horner noted that Petitioner’s purported evidence of his

20

innocence was not reliable.

21

re-litigation of his actual innocence claim was an abuse of the

22

writ.

23

Judge Horner found that Petitioner’s

In January 2014, Petitioner filed a habeas petition in the

24
California Court of Appeal.

Respondent argued that the claims had

25
26
27
28

4

Neither Petitioner nor Respondent filed a copy of this
petition. However, the Superior Court described the petition in
its order denying it. Petitioner does not dispute the
characterization of the petition.
14

1

been properly denied and also presented a declaration from Amitha,

2

stating that she had never recanted her testimony and that she had

3

not written the letter filed by Petitioner nor had she ever called

4

his mother.

5

denied the petition.

6

On June 30, 2013, the Court of Appeal summarily
On July 8, 2014, Petitioner filed a petition

for habeas relief with the Supreme Court of California.

The

7
Supreme Court summarily denied review on September 10, 2014.
8
9

United States District Court
For the Northern District of California

10

Petitioner filed the instant petition, raising a claim of
actual innocence5, on November 17, 2014.
LEGAL STANDARD

11
12

The Antiterrorism and Effective Death Penalty Act of 1996

13

(AEDPA) imposes a statute of limitations on petitions for a writ

14

of habeas corpus filed by state prisoners.

Petitions filed by

15
prisoners challenging non-capital state convictions or sentences
16
must be filed within one year of the latest of the date on which:
17
18
19
20
21
22
23

(A) the judgment became final after the conclusion of
direct review or the time passed for seeking direct
review;
(B) an impediment to filing an application created by
unconstitutional state action was removed, if such
action prevented the petitioner from filing;
(C) the constitutional right asserted was recognized by
the Supreme Court, if the right was newly recognized by

24
25
26
27
28

5

The initial federal habeas petition appears to raise a
claim of ineffective assistance of counsel, but Petitioner’s
response to the motion to dismiss states that “he has not raised
ineffective assistance of counsel.” Docket No. 20 at 16. The
Court’s finding that the petition is untimely also applies to any
ineffective assistance of counsel claim as well.
15

the Supreme Court and made retroactive to cases on
collateral review; or

1
2

(D) the factual predicate of the claim could have been
discovered through the exercise of due diligence.

3
4

28 U.S.C. § 2244(d)(1).

5

The one-year statute of limitations is tolled under

6

§ 2244(d)(2) for the “time during which a properly filed

7

application for State post-conviction or other collateral review

8

with respect to the pertinent judgment or claim is pending.”

9

U.S.C. § 2244(d)(2).

28

Absent any tolling, the expiration date of

10
United States District Court
For the Northern District of California

the limitations period will be the same date as the triggering
11
12
13

event in the following year.
1246 (9th Cir. 2001).

DISCUSSION

14
15
16
17

Patterson v. Stewart, 251 F.3d 1243,

I.

Timeliness
Petitioner’s state judgment became final on October 21, 2008,

ninety days after July 23, 2008, when the California Supreme Court

18
denied review of the California Court of Appeal’s decision on his
19
direct appeal.

See Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999)

20
21

(direct review includes the ninety day period in which to file a

22

petition for writ of certiorari in the United States Supreme

23

Court).

24

predicate for his actual innocence claim until approximately

25

March 7, 2012, when he learned of the purported letter from Amitha

26

Petitioner argues that he did not discover the factual

to his mother recanting her trial testimony.

27
28
16

He also argues that

1
2

the statute of limitations was tolled following his discovery
while he filed his various state habeas petitions.

3

The Court finds, as the state court found, that the purported

4

letter from Amitha to Petitioner’s mother is not reliable newly

5

found evidence.

6

Indeed, Respondent produced a declaration from

Amitha stating that she “did not write or sign” the letter and

7
that she “never telephoned Mr. Dixson’s mother.”

Respondent’s Ex.

8
9

15.

Accordingly, the Court finds that the letter was not evidence

United States District Court
For the Northern District of California

10

sufficient to delay commencement of the AEDPA statute of

11

limitations.

12
13
14

Even if the purported letter from Amitha to Petitioner’s
mother were newly discovered evidence sufficient to delay
commencement of the one-year statute of limitations to March 7,

15
2012, the Court finds that the petition, filed on November 17,
16
2014, was not timely.

On March 29, 2013, the Alameda County

17
18

Superior Court denied Petitioner’s amended state habeas petition,

19

finding that it was untimely and an abuse of the writ.

20

above, the AEDPA statute of limitations is only tolled for the

21

“time during which a properly filed application for State post-

22

conviction or other collateral review with respect to the

23

pertinent judgment or claim is pending.”

As noted

28 U.S.C. § 2244(d)(2)

24
(emphasis added).

Petitioner’s untimely amended state habeas

25
26

petition was not “properly filed” for purposes of § 2244(d)(2).

27

See Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005) (“a state

28

postconviction petition rejected by the state court as untimely”
17

1

is not “properly filed”); see also Bonner v. Carey, 425 F.3d 1145,

2

1149 (9th Cir. 2005) (petition dismissed as untimely by California

3

court is not “properly filed”).

4

challenge in the Court of Appeal the Superior Court’s finding of

5

untimeliness.

6

Moreover, Petitioner did not

Instead, Petitioner filed further amended petitions

in the Superior Court on June 13, 2013 and October 21, 2013, which

7
were denied as abuses of the writ.
8
Accordingly, the Court finds that Petitioner’s federal habeas

9

United States District Court
For the Northern District of California

10

petition was not timely filed.

11

II.

12
13
14

Actual Innocence
Petitioner also argues that he is entitled to federal review

of his petition because his underlying claim of actual innocence
is meritorious.

In McQuiggin v. Perkins, 133 S. Ct. 1924, 1928

15
(2013), the Supreme Court addressed the actual innocence gateway
16
established in Schlup v. Delo, 513 U.S. 298 (1995), and held that
17
18

“actual innocence, if proved, serves as a gateway through which a

19

petitioner may pass” allowing federal habeas review even if the

20

petition was filed outside of the statute of limitations.

21

However, for the Schlup “actual innocence” gateway to apply, “a

22

petitioner must show that, in light of all the evidence, including

23

evidence not introduced at trial, ‘it is more likely than not that

24
no reasonable juror would have found petitioner guilty beyond a
25
26
27

reasonable doubt.’”

Majoy v. Roe, 296 F.3d 770, 776-77 (9th Cir.

2002)(quoting Schlup, 513 U.S. at 327).

28
18

1

The Supreme Court has cautioned that “tenable actual-

2

innocence gateway pleas are rare.”

3

see also House v. Bell, 547 U.S. 518, 538 (2006) (“the Schlup

4

standard is demanding and permits review only in the

5

‘extraordinary’ case”).

McQuiggin, 133 S. Ct. at 1928;

Claims of actual innocence must be

6
supported by “new reliable evidence--whether it be exculpatory
7
8
9

scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence--that was not presented at trial.

Because such

United States District Court
For the Northern District of California

10

evidence is obviously unavailable in the vast majority of cases,

11

claims of actual innocence are rarely successful.”

12

U.S. at 324.

13
14

Schlup, 513

The evidence produced by Petitioner is not reliable.
Moreover, even if taken as true, none of the evidence, except the

15
purported letter by Amitha, would prove Petitioner’s innocence.
16
17

The declaration of Shelton Wadsworth is credible on its face.

18

declared that, after hearing Petitioner describe his car, he

19

remembered that he had seen Petitioner five years earlier,

20

intended to rob him, and followed him around Lancaster and

21

Palmdale, California.

He

22

Wadsworth also declared that, after seeing

a photograph of Amitha, he was sure that he had seen her leave a

23
motel room, uninjured, on that day five years earlier.

Even if

24
25
26

this declaration were deemed reliable and Wadsworth had seen
Amitha leave a motel room, uninjured on an unspecified date, that

27

fact would not prove that Petitioner had never raped or injured

28

Amitha.
19

1

Petitioner argued that the two unauthenticated motel receipts

2

showed that he did not rape Amitha, because she only went to a

3

motel room that she herself had rented.

4

the fact that Amitha might have rented the motel room would not

5

prove that Petitioner never raped or injured her.

6

Even if taken as true,

Similarly, even

if Anita Suri’s and Neena Suri’s statements are assumed to be

7
true, their recollections of Amitha’s condition on unspecified
8
9

United States District Court
For the Northern District of California

10

dates do not prove that Petitioner never raped or injured Amitha.
The only document produced by Petitioner that, if credible,

11

could reasonably call into question his guilt is the purported

12

letter from Amitha.

13

Petitioner first presented the letter without authentication.

14

However, that letter is wholly unreliable.
He

later attempted to authenticate it himself and, only after the

15
letter was twice rejected by the state court, did he present the
16
declaration from his mother stating that she received the letter
17
18

in the mail and that Amitha had called her, telling her to expect

19

the letter.

20

Amitha stating that she did not call Respondent’s mother and she

21

neither wrote nor signed the purported letter disavowing her trial

22

testimony.

23

As noted above, Respondent produced a declaration by

Accordingly, Petitioner’s claim of actual innocence

does not excuse the untimely filing of his federal habeas

24
petition.
25
26
27
28

CERTIFICATE OF APPEALABILITY
A habeas petitioner must be granted a certificate of
appealability in order to appeal.
20

See Rule 11(a) of the Rules

1

Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring district

2

court to rule on certificate of appealability in same order that

3

denies petition).

4

granted “only if the applicant has made a substantial showing of

5

the denial of a constitutional right.”

6

A certificate of appealability should be

28 U.S.C. § 2253(c)(2).

Where a petition is dismissed on procedural grounds, as it is

7
here, granting a certificate of appealability has two components:
8
9

“one directed at the underlying constitutional claims and one

United States District Court
For the Northern District of California

10

directed at the district court’s procedural holding.”

11

McDaniel, 529 U.S. 473, 484-85 (2000).

12

denies a habeas petition on procedural grounds without reaching

13

the prisoner’s underlying constitutional claim, a COA should issue

14

Slack v.

“When the district court

when the prisoner shows, at least, that jurists of reason would

15
find it debatable whether the petition states a valid claim of the
16
denial of a constitutional right and that jurists of reason would
17
18
19
20

find it debatable whether the district court was correct in
its procedural ruling.”

Id. at 484.

The application of the procedural rule in this case is not

21

debatable.

22

Petitioner’s mother was newly discovered evidence sufficient to

23

Even if the purported letter from Amitha to

delay commencement of the one-year statute of limitations to March

24
7, 2012, the federal habeas petition was untimely.

Moreover, the

25
26

purported evidence of actual innocence was unreliable.

27

certificate of appealability is denied.

28

certificate of appealability from the Court of Appeals.
21

A

Petitioner may request a

CONCLUSION

1
2

For foregoing reasons, the Court orders as follows:

3

1. Respondent’s motion to dismiss is GRANTED. (Docket No. 14)

4

2. A Certificate of Appealability is DENIED.

5

3. Petitioner’s motion for an evidentiary hearing and for

6

appointment of counsel is DENIED as moot (Docket No. 21).

7
The Clerk of the Court shall enter judgment and close the
8
9

United States District Court
For the Northern District of California

10

file.
IT IS SO ORDERED.

11
12
13

Dated: 3/31/2016
CLAUDIA WILKEN
United States District Judge

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