McDermott v. Carlin

Filing 25

MEMORANDUM DECISION & ORDER Petitioner's Motion for Leave to File Amendment to Habeas Corpus Petition (Dkt. 13 ), which asks the Court to "extend[]" Claim 5, is GRANTED to the extent set forth above. Petitioner's Motion for Leav e to Seek Equitable Tolling (Dkt. 14 ) is DENIED. Petitioner's Motion and Notice of Nil-Dicit Default Judgment and Stay of Proceedings (Dkt. 19) is DENIED. The failure to file a response to a motion is not a sufficient basis for a default judg ment or a stay of the proceedings. Respondent's Motion for Summary Dismissal (Dkt. 11 ) is GRANTED, and the Petition (Dkt. 3 ) is DISMISSED with prejudice. Petitioner's Motion for Leave to File Motion Reply Contesting Misrepresented Facts (Dkt. 20 ) is DENIED AS MOOT. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JASON RYAN McDERMOTT,
Case No. 3:15-cv-00425-EJL
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
WARDEN TAMIKA CARLIN,
Respondent.

Pending before the Court is Petitioner Jason Ryan McDermott’s Petition for Writ
of Habeas Corpus. (Dkt. 3.) Respondent has filed a Motion for Summary Dismissal,
arguing that the Petition is barred by the one-year statute of limitations and that the
claims in the Petition are procedurally defaulted or noncognizable. (Dkt. 11.) The Motion
is now ripe for adjudication.
Having carefully reviewed the record, including the state court record, the Court
finds that the parties have adequately presented the facts and legal arguments in the briefs
and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).

MEMORANDUM DECISION AND ORDER - 1

Accordingly, the Court enters the following Order granting the Motion and
dismissing all the claims in the Petition as untimely.1
BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
State v. McDermott, Docket No. 32071, Op. 518 (Idaho Ct. App. July 2, 2009)
(unpublished), which is contained in the record at State’s Lodging B-4. The facts will not
be repeated here except as necessary to explain the Court’s decision.
Petitioner was convicted by a jury in the Fourth Judicial District in Ada County,
Idaho, of first-degree murder and conspiracy to commit first-degree murder, as well as a
firearm enhancement. (State’s Lodging B-4 at 1.) After the jury was unable to reach a
unanimous verdict with respect to the aggravating factors necessary to render Petitioner
eligible to receive the death penalty, the trial court sentenced Petitioner to two concurrent
terms of life imprisonment without the possibility of parole for the murder and the
conspiracy convictions, as well as an additional sentence of 10 years for the firearm
enhancement. (Id. at 3.)
Petitioner appealed, arguing that his sentences were excessive and constituted an
abuse of discretion. (State’s Lodging B-1.) The Idaho Court of Appeals affirmed. State’s
Lodging B-4.) The Idaho Supreme Court denied review on August 24, 2009. (State’s
Lodging B-7.)

1

The Court does not address Respondent’s argument that the claims in the Petition are
procedurally defaulted or noncognizable.

MEMORANDUM DECISION AND ORDER - 2

On March 24, 2010—at the earliest2—Petitioner filed a petition for state
postconviction relief. (State’s Lodging C-1 at 4-9.) The state district court dismissed the
petition. (State’s Lodging C-1 at 394.) The Idaho Court of Appeals affirmed. (State’s
Lodging D-14.) The Idaho Supreme Court denied review and issued the remittitur on
June 22, 2012. (State’s Lodging D-17.)
On December 21, 2012, Petitioner filed a successive petition for postconviction
relief in the state district court. (State’s Lodging E-1 at 4-71.) The trial court dismissed
the successive petition on several different grounds—Petitioner’s claims were determined
to be (1) meritless, (2) barred pursuant to Idaho Code § 19-4908, Idaho’s successive
petitions bar, (3) barred because they should have been raised on direct appeal, (4) barred
on the grounds of res judicata, or (5) barred as untimely. (Id. at 139-52.) The Idaho Court
of Appeals affirmed the dismissal of all claims relevant to these proceedings as
untimely.3 (State’s Lodging F-8 at 3-5.) The Idaho Supreme Court denied review on
August 12, 2015. (State’s Lodging F-11.)

2

Like the federal courts, Idaho courts follow the “mailbox rule” and deem a pro se inmate’s
postconviction petition filed on the date the petition is delivered to prison authorities for placement in the
mail. Munson v. State, 917 P.2d 796, 800 (Idaho 1996). See also Houston v. Lack, 487 U.S. 266, 270-72
(1988) (holding, under federal law, that if a prisoner is entitled to the benefit of the mailbox rule, a legal
document is deemed filed on the date a Petitioner delivers it to the prison authorities for filing by mail,
rather than the date it is actually filed with the clerk of court); Rule 3(d) of the Rules Governing Section
2254 Cases.
In Petitioner’s case, there was a substantial delay between March 24, 2010, the date that
Petitioner stated he mailed the postconviction petition, and May 5, 2010, the date that the Ada County
Court received the petition. (State’s Lodging C-1 at 4, 9.) However, for purposes of this decision the
Court will use the earliest possible date—March 24, 2010.

3

The state court of appeals held that all of Petitioner’s claims, except one, were untimely. The
exception was Petitioner’s claim of error in the resolution of the appeal from the denial of Petitioner’s
initial postconviction petition. The court held that this claim was barred by the doctrine of res judicata.
Petitioner does not raise this claim in his federal Petition.

MEMORANDUM DECISION AND ORDER - 3

Petitioner filed his Petition in this Court, at the earliest, on September 8, 2015.
(Dkt. 3 at 19.)
DISCUSSION
In the instant federal habeas corpus petition, Petitioner asserts the following
claims:
Claim 1:

That Petitioner’s Fourth Amendment rights were
violated when police officers exceeded the scope of a
search warrant.

Claim 2:

That Petitioner’s Fifth Amendment right to be free
from compelled self-incrimination was violated when
(a) detectives “attempted to coerce statements” from
Petitioner; (b) the prosecutor “attacked allocution”;
and (c) the trial judge “used [the] right not to testify or
self-incriminate as means for dealing out such [a]
harsh sentence.”

Claim 3:

That Petitioner’s rights were violated when (a) the
prosecutor threatened several witnesses to discourage
them from testifying on Petitioner’s behalf; and (b)
Petitioner’s counsel rendered ineffective assistance by
failing to present evidence of Petitioner’s traumatic
brain injury.

Claim 4:

That Petitioner’s rights under the Eighth Amendment
were violated when (a) he was not allowed bail; and
(b) he was given an illegal sentence.

Claim 5:

That Petitioner’s due process rights were violated
when (a) the prosecutor “‘leaked’ false and/or
misrepresented info to the media”; (b) detectives
interfered with Petitioner’s right to legal counsel “once
detectives and State became aware of [his] disability”;
and (c) the prosecutor failed to disclose exculpatory

MEMORANDUM DECISION AND ORDER - 4

evidence in violation of Brady v. Maryland, 373 U.S.
83 (1963).4
Claim 6:

That Petitioner’s due process rights were violated
when (a) the prosecutor “colluded with the victim’s
mother” and Petitioner’s co-defendant’s mother “in a
secret meeting held in the judge’s chambers”; (b) a
witnesses committed perjury at Petitioner’s
preliminary hearing; (c) the “judge allowed perjury”
by Petitioner’s co-defendant; (d) the “court allowed for
unlawful use of unsubstantiated prior acts of . . .
criminal history”; (e) the “court allowed for the
testimony of state’s witnesses, who provided false
statements at trial”; (f) the judge gave conflicting,
confusing, and misleading jury instructions; (g) the
prosecutor “attacked” the testimony of an expert
witness “until [the] prosecutor received [the] version
he wanted”; (h) Petitioner was not allowed a
competency hearing; (i) unsubstantiated information
“was used during [the] guilt phase”; and (j) Petitioner
was not allowed a change of venue.

Claim 7:

That Petitioner’s rights to due process and equal
protection were violated when (a) the detectives,
prosecutor, and judge “exhibited misconduct and
extrajudicial purpose”; (b) the trial judge exhibited
“blatant prejudice and bias”; (c) the court allowed a lay
witness to express an expert opinion; (d) the court
waited to impose a sentence until after the trial of
Petitioner’s co-defendant; and (e) the court
“abandoned its role as a neutral and detached
magistrate by providing a malicious judgment.”

Claim 8:

That Petitioner’s rights to due process and equal
protection were violated when (a) the prosecutor
misled the jury; (b) the prosecutor “unlawfully
attacked [Petitioner’s] allocution”; (c) the court
imposed an illegal sentence when compared with the

4

The Court will grant Petitioner’s request to “extend[]” Claim 5 to include “both a newly
discovered evidence claim and . . . a direct violation of his fundamental due process rights.” (Dkt. 13 at
2.)

MEMORANDUM DECISION AND ORDER - 5

sentence of Petitioner’s co-defendant; (d) “no
challenge was made to the false statements of multiple
witnesses”; (e) Petitioner’s trial counsel did not
produce appropriate witnesses; (f) trial counsel did not
challenge the “lack of plausible forensic evidence”; (g)
trial counsel did not allow Petitioner to view the jury
questionnaire; (h) trial counsel failed to challenge
“conflicting, misleading, and misrepresented jury
instructions”; (i) trial counsel failed to notice a time
discrepancy between when Petitioner was arrested and
when Petitioner was interviewed”; (j) trial counsel
failed to challenge “potential juror taint”; (k) direct
appeal counsel failed to appropriately pursue
“available avenues of challenge”; and (l) direct appeal
counsel failed “to adequately challenge their point of
concession” regarding the trial judge’s alleged bias.
Claim 9:

That Petitioner’s rights to due process and equal
protection were violated because (a) his conviction for
conspiracy was based on “unlawful, illegally obtained,
and inadmissible evidence”; (b) Petitioner’s trial
counsel, the prosecutor, and the trial judge “allow[ed]
the grave injustice . . . when the conspiracy conviction
was not challenged, nor dismissed” upon the acquittal
of Petitioner’s co-conspirator.

(Pet., Dkt. 3, at 6-18; Initial Review Order, Dkt. 7, at 2-4.)
Respondent argues that Petitioner’s claims are barred by the one-year statute of
limitations. The Court agrees. Because Petitioner (1) is entitled to statutory tolling of only
part of the statute of limitations period, (2) is not entitled to equitable tolling, and (3) has
not made a colorable showing of actual innocence, the Court will dismiss the Petition
with prejudice as untimely.
1.

Standards of Law
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily

dismiss a petition for writ of habeas corpus when “it plainly appears from the face of the
MEMORANDUM DECISION AND ORDER - 6

petition and any attached exhibits that the petitioner is not entitled to relief in the district
court.” The Court may also take judicial notice of relevant state court records in
determining whether to dismiss a petition.5 Fed. R. Evid. 201(b); Dawson v Mahoney,
451 F.3d 550, 551 (9th Cir. 2006). Where appropriate, a respondent may file a motion for
summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir.
1989).
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires a
petitioner to seek federal habeas corpus relief within one year from “the date on which
the judgment became final by the conclusion of direct review or the expiration of the time
for seeking such review.”6 28 U.S.C. § 2244(d)(1)(A). One year in this context actually
means 366 days, for example, from January 1, 2001, to January 1, 2002. See Patterson v.
Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying Federal Rule of Civil Procedure
6(a) to AEDPA, where the calculation excludes the day the conviction became final).

5

The Court takes judicial notice of the records from Petitioner’s state court proceedings, which
have been lodged by Respondent. (Dkt. 10.)

6

Several other triggering events for the statute of limitations exist—but are less common—and are
set forth in subsections 2244(d)(1)(B)-(D):
(B) the date on which the impediment to filing an application created by State action in
violation of the Constitution or laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).

MEMORANDUM DECISION AND ORDER - 7

Thus, the first step in a statute of limitations analysis is determining the date on which the
petitioner’s conviction became final.
Under 28 U.S.C. § 2244(d)(1)(A), the date of “finality” that begins the one-year
time period is marked as follows, depending on how far a petitioner pursues his case:
Action Taken

Finality Occurs

No appeal is filed after state district court order or judgment

42 days later, see
Idaho Appellate
Rule 14

Appeal is filed and Idaho Court of Appeals issues a
decision, but no petition for review is filed with the Idaho
Supreme Court

21 days later, see
Idaho Appellate
Rule 118

Appeal is filed and Idaho Supreme Court issues a decision
or denies a petition for review of an Idaho Court of Appeals
decision, and Petitioner does not file a petition for writ of
certiorari with the United States Supreme Court

90 days later, see
United States
Supreme Court
Rule 13

After Idaho Supreme Court issues a decision or denies a
petition for review, Petitioner files a petition for writ of
certiorari to the United States Supreme Court, and the
petition is denied

Date of denial

After Idaho Supreme Court issues a decision or denies a
petition for review, Petitioner files a petition for writ of
certiorari to the United States Supreme Court, the petition is
granted, and the United States Supreme Court issues a
decision

Date of decision

In each of the above instances, if the petitioner stops pursuing the case and does
not take the next step within the time specified, “finality” is measured from entry of final
judgment or order, not from a remittitur or mandate, which are mere formalities.
Gonzales v. Thaler, 132 S.Ct. 641, 653 (2012); Clay v. United States, 537 U.S. 522, 529

MEMORANDUM DECISION AND ORDER - 8

(2003); Wixom v. Washington, 264 F.3d 894, 898 n.4 (9th Cir. 2001). That is, finality
occurs on the date of the final order terminating direct review. In Idaho, the final order
terminating a direct appeal is either (1) the Idaho Supreme Court’s decision in a direct
appeal, or (2) in cases where the Idaho Court of Appeals decides the direct appeal and the
Idaho Supreme Court declines to review that decision, the Idaho Supreme Court’s denial
of a petition for review from the decision of the court of appeals.7
The one-year statute of limitations can be tolled (or suspended) under certain
circumstances. First, AEDPA provides for tolling for all of “[t]he time during which a
properly filed application for State post-conviction or other collateral review . . . is
pending.” 28 U.S.C. § 2244(d)(2). A motion to reduce a sentence that is not a part of the
direct review process and that requires re-examination of the sentence qualifies as a
collateral review application that tolls the one-year statute of limitations. Wall v. Kholi,
562 U.S. 545, 555-56 (2011). Thus, to the extent that a petitioner properly filed an
application for postconviction relief or other collateral challenge in state court, the oneyear federal limitations period stops running on the filing date of the state court action
and resumes when the action is completed.
The time before a petitioner files an initial application for collateral review in state
court, however, does not toll the statute of limitation. Nino v. Galaza, 183 F.3d 1003,
7

In Idaho, all appeals from district courts initially go to the Idaho Supreme Court. That court then
assigns certain cases to the Idaho Court of Appeals, which is required to decide all such assigned cases.
See Idaho App. R. 108. Generally, cases that are assigned to the court of appeals are those “involv[ing]
existing legal principles” as opposed to cases of first impression. Id. Once the Idaho Court of Appeals
decides an assigned case, then the losing party may file a petition for review with the Idaho Supreme
Court, which then determines whether to review the decision of the Idaho Court of Appeals. Idaho App.
R. 118.

MEMORANDUM DECISION AND ORDER - 9

1006 (9th Cir. 1999) (“AEDPA’s statute of limitations is not tolled from the time a final
decision is issued on direct state appeal and the time the first state collateral challenge is
filed because there is no case ‘pending’ during that interval.”), abrogated on other
grounds as stated in Nedds v. Calderon, 678 F.3d 777, 781 (9th Cir. 2012). Further,
AEDPA “does not permit the reinitiation of the [federal] limitations period that has ended
before the state petition was filed.” Ferguson v. Palmateer, 321 F.3d 820, 822 (9th Cir.
2003). Additionally, any postconviction petition or other collateral proceeding that is
untimely under state law is not considered “properly filed” and thus does not toll the
statute of limitation. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005).
If, after applying statutory tolling, a habeas petition is deemed untimely, a federal
court can still hear the merits of the claims if the petitioner can establish that “equitable
tolling” should be applied to toll the remaining time period. See Jorss v. Gomez, 311 F.3d
1189, 1192 (9th Cir. 2002) (“[A] court must first determine whether a petition was
untimely under the statute itself before it considers whether equitable tolling should be
applied.”). The limitations period may be equitably tolled under exceptional
circumstances. “[A] petitioner is entitled to equitable tolling only if he shows (1) that he
has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649
(2010) (internal quotation marks omitted). To qualify for equitable tolling, a
circumstance must have caused a petitioner to be unable to file his federal petition on
time. Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009).

MEMORANDUM DECISION AND ORDER - 10

In addition, the statute of limitations is subject to an actual innocence exception. A
petitioner who satisfies the actual innocence gateway standard may have his otherwise
time-barred claims heard on the merits. McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-32
(2013); Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc). Actual innocence in
this context means “factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 624 (1998). Although “habeas petitioners who assert convincing
actual-innocence claims [need not] prove diligence to cross a federal court’s threshold,” a
court “‘may consider how the timing of the submission and the likely credibility of a
petitioner’s affiants bear on the probable reliability of evidence of actual innocence.’”
McQuiggin, 133 S. Ct. at 1935 (quoting Schlup, 513 U.S. at 332) (alterations omitted).
2.

The Petition Is Barred by the Statute of Limitations
A.

Petitioner’s Convictions Became Final on November 22, 2009

Because Petitioner did not file a petition for certiorari when litigating his direct
appeal, Petitioner’s conviction became final on November 22, 2009, 90 days after the
Idaho Supreme Court denied the petition for review of the decision of the Idaho Court of
Appeals. See U.S.S.Ct. Rule 13. Absent tolling, the statute of limitations period would
have expired one year later, on November 22, 2010. Petitioner filed his Petition in this
Court on September 8, 2015. Therefore, the claims in the Petition are barred by
AEDPA’s one-year statute of limitations unless Petitioner establishes that he is entitled to
statutory or equitable tolling or that he is actually innocent.

MEMORANDUM DECISION AND ORDER - 11

B.

Statutory Tolling

As set forth above, AEDPA’s one-year limitations period is tolled for all of the
time “during which a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C.
§ 2244(d)(2). Petitioner filed his initial state postconviction petition on March 24, 2010.
Therefore, 122 days of the limitations period had already passed between the date
Petitioner’s conviction became final (November 22, 2009) and the date Petitioner filed
his initial postconviction petition (March 24, 2010). Petitioner thus had 244 days
remaining (366 days minus 122 days) when his postconviction proceedings concluded—
that is, when the Idaho Supreme Court issued the remittitur in the postconviction case.8
That remittitur was issued on June 22, 2012. The statute of limitation began to run again
on that date.
Therefore, Petitioner’s federal Petition was due in this Court on or before February
21, 2013 (244 days after June 22, 2012). Although Petitioner filed a successive
postconviction petition in state court, that petition was not “properly filed,” because the
Idaho Court of Appeals determined that the successive petition was untimely under state
law. (State’s Lodging F-8 at 3-5.) Thus, Petitioner’s successive state postconviction
petition cannot serve to toll statute of limitations. See 28 U.S.C. § 2244(d)(2); Pace, 544
U.S. at 414.
8

To determine the date when Petitioner’s state court postconviction action concluded, the Court
looks to state law. Allen v. Lewis, 295 F.3d 1046, 1046 (9th Cir. 2002) (en banc) (reaffirming Bunney v.
Mitchell, 249 F.3d 1188 (9th Cir. 2001), superseded by Cal. Rule of Court 29.4(b)(2)(C)); see also
Lawrence v. Florida, 549 U.S. 327, 331 (2007)). In Idaho, decisions of the Idaho Supreme Court are final
when the remittitur is issued. See Jakoski v. State, 32 P.3d 672, 679 (Idaho Ct. App. 2001).

MEMORANDUM DECISION AND ORDER - 12

Even with statutory tolling during Petitioner’s initial postconviction proceedings,
Petitioner’s September 8, 2015 federal petition was still filed over two and one-half years
too late. Therefore, Petitioner’s claims can be deemed timely only if he is entitled to
equitable tolling.
C.

Equitable Tolling

As noted above, equitable tolling will apply if (1) the petitioner has pursued his
rights diligently and (2) extraordinary circumstances stood in his way and prevented a
timely filing. Holland, 560 U.S. at 649. “[T]he threshold necessary to trigger equitable
tolling under AEDPA is very high, lest the exceptions swallow the rule.” Miranda v.
Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal quotation marks and alteration
omitted). As to the diligence issue, the Supreme Court has held that a petitioner who
“waited years, without any valid justification” to bring his postconviction claims in state
court, and then waited “five more months after his [postconviction] proceedings became
final before deciding to seek relief in federal court,” had not acted diligently in pursuing
his rights. Pace, 544 U.S. at 419.
Petitioner has not established extraordinary circumstances that would justify the
application of equitable tolling in this case. Petitioner asserts that he is not an attorney
and is not college-educated. He claims that the “rules for the statute of limitations [are]
very confusing” and that he believed he had one year from each state court filing to file a
federal petition. (Dkt. 14 at 2.) Petitioner may be correct that AEDPA’s statute of
limitations is difficult for a layperson to understand. However, Petitioner is not unique in

MEMORANDUM DECISION AND ORDER - 13

that respect—nearly all pro se prisoners must deal with the same issue. Thus, Petitioner’s
education level is not an extraordinary circumstance that calls for the application of
equitable tolling.
Petitioner also asserts he has a traumatic brain injury that affects his organizational
skills and “his ability to keep proper track of time.” (Id. at 5.) However, Petitioner’s
filings in this case have been clear and understandable and he has been able to protect his
interests in this litigation. In addition, Petitioner’s argument that he believed he had one
year after each state post-conviction action in which to file his federal petition shows not
that his organizational skills caused his late filing, but his misunderstanding of the law.
Further, the Court cannot conclude that any of the circumstances of which
Petitioner complains “made it impossible to file a petition on time.” Ramirez, 571 F.3d at
997 (emphasis added) (internal quotation marks and alteration omitted). The Petition was
not simply late—it was two and one-half years too late. Petitioner has not met his burden
of establishing that extraordinary circumstances beyond his control prevented him from
filing a timely habeas petition at some point during that extremely long period of time.
D.

Petitioner Has Not Established Actual Innocence to Excuse the Untimely
Filing

To take advantage of the actual innocence gateway exception to the statute of
limitations, a petitioner must demonstrate “that it is more likely than not that no
reasonable juror would have found [the] petitioner guilty beyond a reasonable doubt.”
Schlup, 513 U.S. at 327. Stated another way, a petitioner must show that every reasonable
juror would vote to acquit.

MEMORANDUM DECISION AND ORDER - 14

This is an extremely stringent standard that “permits review only in the
‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538 (2006). A court considering
whether a petitioner has established actual innocence must consider “all the evidence, old
and new, incriminating and exculpatory, admissible at trial or not.” Lee v. Lampert, 653
F.3d 929, 938 (9th Cir. 2011) (en banc) (internal quotation marks omitted). The actual
innocence analysis “does not turn on discrete findings regarding disputed points of fact,
and ‘[i]t is not the district court’s independent judgment as to whether reasonable doubt
exists that the standard addresses.’” House v. Bell, 547 U.S. 518, 539-40 (2006) (quoting
Schlup, 513 U.S. at 329 (alteration in original)). Rather, the court must “make a
probabilistic determination about what reasonable, properly instructed jurors would do.”
Schlup, 513 U.S. at 329.
Petitioner has not met this exceptionally strict standard. Indeed, he has not
submitted any convincing evidence of innocence at all. Contrary to Plaintiff’s contention,
the lack of Petitioner’s fingerprints or DNA at the crime scene does not establish that he
was not there—the absence of evidence is not the presence of proof. The Schlup actualinnocence exception does not apply to excuse Petitioner’s failure to file his Petition on
time.

MEMORANDUM DECISION AND ORDER - 15

CONCLUSION
For the foregoing reasons, the Court concludes that the Petition is untimely.
Therefore, the Court will dismiss this case with prejudice.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion for Leave to File Amendment to Habeas Corpus
Petition (Dkt. 13), which asks the Court to “extend[]” Claim 5, is
GRANTED to the extent set forth above.

2.

Petitioner’s Motion for Leave to Seek Equitable Tolling (Dkt. 14) is
DENIED.

3.

Petitioner’s Motion and Notice of Nil-Dicit Default Judgment and Stay of
Proceedings (Dkt. 19) is DENIED. The failure to file a response to a
motion is not a sufficient basis for a default judgment or a stay of the
proceedings.

4.

Respondent’s Motion for Summary Dismissal (Dkt. 11) is GRANTED, and
the Petition (Dkt. 3) is DISMISSED with prejudice.

5.

Petitioner’s Motion for Leave to File Motion Reply Contesting
Misrepresented Facts (Dkt. 20) is DENIED AS MOOT.

6.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If

MEMORANDUM DECISION AND ORDER - 16

Petitioner wishes to appeal, he must file a timely notice of appeal with the
Clerk of Court. Petitioner may seek a certificate of appealability from the
Ninth Circuit by filing a request in that court.

DATED: August 16, 2016

_________________________
Edward J. Lodge
United States District Judge

MEMORANDUM DECISION AND ORDER - 17