Jackson v. Cate

Filing 22

ORDER GRANTING MOTION TO DISMISS PETITION; DENYING CERTIFICATE OF APPEALABILITY by Judge Lucy H. Koh granting 15 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 5/13/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LARRY G. JACKSON,

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Petitioner,
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v.
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WARDEN RON BARNES,
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Respondent.
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_________________________________ )

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No. C 12-0855 LHK (PR)
ORDER GRANTING MOTION TO
DISMISS PETITION; DENYING
CERTIFICATE OF APPEALABILITY
(Docket No. 15)

Petitioner, a state prisoner proceeding pro se, sought a writ of habeas corpus pursuant to 28

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U.S.C. § 2254 challenging his 2006 conviction and sentence in the Superior Court of Santa Clara

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County. Respondent was ordered to show cause why the writ should not be granted. Respondent

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has filed a motion to dismiss the petition as untimely. Petitioner has filed an opposition, and

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Respondent has filed a reply. Petitioner then filed a “motion of traverse” in response to

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Respondent’s reply. Having considered all the papers submitted, the Court GRANTS Respondent’s

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motion to dismiss.
I.

BACKGROUND
In 2006, Petitioner pleaded guilty to rape. (Mot. at 2.) On November 28, 2006, Petitioner

filed a notice of appeal in the California Court of Appeal. (Mot., Ex. A.) On July 9, 2007, Petitioner
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abandoned the appeal, and it was dismissed. (Id.) On November 23, 2011, Petitioner filed a state
habeas petition in the California Court of Appeal, which denied the petition on December 2, 2011.
(Mot., Ex. B.) On January 11, 2012, the California Supreme Court denied a petition for review.
Order Granting Motion to Dismiss Petition; Denying Certificate of Appealability
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(Mot., Ex. C.) Petitioner filed the underlying federal petition on February 3, 2012.

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II.

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DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) became law on

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April 24, 1996, and imposed for the first time a statute of limitations on petitions for a writ of habeas

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corpus filed by state prisoners. Under the AEDPA, petitions filed by prisoners challenging

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non-capital state convictions or sentences must be filed within one year of the latest of the date on
which: (1) the judgment became final after the conclusion of direct review or the time passed for
seeking direct review; (2) an impediment to filing an application created by unconstitutional state
action was removed, if such action prevented petitioner from filing; (3) the constitutional right

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asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme
Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim

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could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). The

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time during which a properly filed application for state post-conviction or other collateral review is

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pending is excluded from the one-year time limit. 28 U.S.C. § 2244(d)(2).

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The one-year period generally will run from “the date on which the judgment became final

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by conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C.

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§ 2244(d)(1)(A). Here, Petitioner filed an abandonment of his appeal on July 9, 2007, and a

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remittitur issued that same day. (Mot., Ex. 2.) If a petitioner could have sought review by the state

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court of appeals or the state supreme court, but did not, the limitation period will begin running

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against him the day after the date on which the time to seek such review expired. Gonzalez v.

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Thaler, 132 S. Ct. 641, 653-654 (2012). Here, Petitioner needed to file a petition for review within

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10 days after the date the Court of Appeal’s decision became final, i.e., by July 19, 2007. See Cal.
R. Ct. 8.500(e)(1). Thus, for the purposes of the AEDPA, Petitioner’s judgment became final on
July 19, 2007. Accordingly, the statute of limitation period commenced on July 20, 2007, and

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expired on July 19, 2008. Absent tolling, Petitioner’s federal petition, filed on February 3, 2012 is
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untimely.
The one-year statute of limitations is tolled under § 2244(d)(2) for the “time during which a

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properly filed application for State post-conviction or other collateral review with respect to the

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pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). Here, there is no basis for

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Order Granting Motion to Dismiss Petition; Denying Certificate of Appealability
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statutory tolling because Petitioner’s first state habeas petition was not filed until November 23,

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2011 (doc. no. 11, Ex. 1), more than three years after the limitations period had already expired. See

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Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit the

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reinitiation of the limitations period that has ended before the state petition was filed,” even if the

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state petition was timely filed).

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Petitioner argues that he should be excused from the statute of limitations because he is
actually innocent. “[A] credible showing of ‘actual innocence’ under Schlup v. Delo, 513 U.S. 298
(1995), excuses the statute of limitations period established by [AEDPA].” Lee v. Lampert, 653
F.3d 929, 932 (9th Cir. 2011) (en banc). Under this “equitable exception,” a petitioner “may pass

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through the Schlup gateway and have his otherwise time-barred claims heard on the merits.” Id. In
order to pass through the Schlup gateway, “a petitioner must produce sufficient proof of his actual

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innocence to bring him “within the ‘narrow class of cases . . . implicating a fundamental miscarriage

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of justice.’” Schlup, 513 U.S. at 314-15 (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)).

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“The evidence of innocence must be “so strong that a court cannot have confidence in the outcome

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of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional

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error.” Schlup, 513 U.S. at 316. A petitioner must show that it is more likely than not that no

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reasonable juror would have convicted him in the light of the new evidence.” Id. at 327. A

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petitioner must support his claims “with new reliable evidence – whether it be exculpatory scientific

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evidence, trustworthy eyewitness accounts, or critical physical evidence – that was not presented at

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trial.” Id. at 324. “By enumerating [these] categories of evidence that could prove innocence, the

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Supreme Court made clear that less reliable kinds of evidence cannot support an actual innocence

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claim.” Lee, 653 F.3d at 945-46 (Kozinski, J. concurring).
Here, Petitioner fails to make any tangible or specific showing of actual innocence. His
opposition and “traverse” offer legal citations and propositions, but no specific evidence to support

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Petitioner’s assertion that he is actually innocent. Without such reliable evidence, Petitioner fails to
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demonstrate that it is more likely than not that no reasonable juror would have convicted him. See
Schlup, 513 U.S. at 327.
Accordingly, Petitioner’s assertion of actual innocence is insufficient to excuse the
untimeliness of his federal petition.

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Order Granting Motion to Dismiss Petition; Denying Certificate of Appealability
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III.

CONCLUSION
Respondent’s motion to dismiss the petition as untimely is GRANTED. The instant petition

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is DISMISSED. The Clerk shall terminate all pending motions and close the file.

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IV.

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CERTIFICATE OF APPEALABILITY
For the reasons set out in the discussion above, Petitioner has not shown “that jurists of

reason would find it debatable whether the district court was correct in its procedural ruling.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a COA is DENIED.
IT IS SO ORDERED.
5/11/13
DATED: _________________________

_________________________
LUCY H. KOH
United States District Judge

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Order Granting Motion to Dismiss Petition; Denying Certificate of Appealability
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