Hernandez-Cruz v. Bowser
Filing
33
OPINION AND ORDER: Petition for Writ of Habeas Corpus (# 2 ) is dismissed as untimely. The Court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) (2). Signed on 11/13/2018 by Judge Robert E. Jones. (joha)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RUDOLFO HERNANDEZ-CRUZ,
Case No. 2:17-cv-01784-JO
Petitioner,
OPINION AND ORDER
v.
TROY BOWSER,
Respondent.
Rudolfo Hernandez-Cruz
17313077
Two Rivers Correctional Institution
82911 Beach Access Road
Umatilla, Oregon 97882-9419
Petitioner, Pro Se
Ellen F. Rosenblum, Attorney General
Nicholas M. Kallstrom, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
JONES, District Judge.
Petitioner
U.S.C.
§
brings
2254
this
habeas
challenging
the
corpus
case
legality
of
pursuant
his
to
28
state-court
convictions for Attempted Murder, Assault, and Unlawful Use of a
Weapon.
Because Petitioner failed to timely file this case,
his
Petition for Writ of Habeas Corpus (#2) is dismissed.
BACKGROUND
Petitioner
case
two
days
viciously
after
she
chest.
ability
to
As
fully
a
female
romantic
sliced her face,
result
turn
the
ended their
stabbed her in the neck,
in the
attacked
of the
her
head
in
this
relationship.
He
and tried to stab her
attack,
and
victim
the victim lost
suffers
from
the
substantial
scarring for the remainder of her life.
On
January
9,
2009,
the
Washington
County
Grand
Jury
indicted Petitioner on one count of Attempted Murder, four counts
of Assault in the First Degree,
of
a
Weapon.
Respondent's
and five counts of Unlawful Use
Exhibit
convicted him of all charges,
102.
A
jury
subsequently
and the trial court sentenced him
to 300 months in prison.
Petitioner took a
Appeals
affirmed the
written opinion.
P. 3d 166
(2011).
direct
trial
State v.
appeal,
court's
but
the Oregon Court
decision
without
Hernandez-Cruz, 240 Or. App.
Petitioner did not
seek review
of
issuing
563,
a
249
from Oregon's
Supreme Court.
Petitioner next filed for post-conviction relief
("PCR")
in
Malheur County where the PCR Court denied relief on his claims.
Respondent's
Exhibit
125.
2 - OPINION AND ORDER
The Oregon Court of Appeals affirmed
the
lower court without opinion,
denied review.
rev.
Cruz
v.
and the Oregon Supreme Court
276 Or.
Nooth,
App.
918,
370 P.3d 565,
359 Or. 777, 381 P.3d 815 (2016).
denied,
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on
July 20,
2018.
Respondent asks the Court to dismiss the action
because Petitioner waited 1065 days to file it, placing it well
outside
the
applicable
one-year
statute
of
Petitioner concedes that his case is untimely,
limitations.
but he asks the
Court to excuse this procedural deficiency because he is entitled
to equitable tolling because:
caused him to delay filing
(1) his transfer to another prison
this
case;
and
( 2)
he
is
actually
innocent based upon his intoxication at the time of his crimes.
DISCUSSION
A habeas corpus petitioner must generally file his federal
challenge to his state convictions within one year of the time
those convictions become final at the conclusion of his direct
review.
done
28
so,
U.S.C.
equitable
2244 (d) (1) (A).
§
tolling
statute of
limitations.
(2010).
litigant
A
establish:
and
(2)
( 1)
is
available
Holland
seeking
Where
to
v.
a petitioner has
to
Florida,
invoke
toll
the
560 U.S.
equitable
not
one-year
631,
tolling
645
must
that he has been pursuing his rights diligently;
that some extraordinary circumstance prevented him from
timely filing his petition.
Pace
v.
DiGuglielmo,
544 U.S.
408,
418 (2005).
In his Petition,
Petitioner asserts that he is entitled to
equitable tolling because he suffers from a language barrier and
received less help preparing his filings after his transfer from
3 - OPINION AND ORDER
the
Snake
River
Correctional
Institution
to
the
Two
Rivers
Correctional Institution. Even assuming his language barrier and
prison
transfer
circumstance,
combined
to
present
an
extraordinary
the transfer did not occur until well after the
limitation period had expired. 1
Petitioner next claims that he is actually innocent of his
crimes. A petitioner who fails to comply with the one-year filing
deadline applicable to 28 U.S.C. § 2254 habeas corpus cases may
overcome that default if he is able to show that he is actually
innocent
of
underlying
569 U.S.
Perkins,
showing
his
of
383,
actual
386
criminal
(2013).
innocence,
a
conduct.
McQuiggin
v.
In order to make a gateway
petitioner
must
present
"new
reliable evidence-whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts,
or critical physical evidence-
that was not presented at trial" which establishes that "it is
more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt." Schlup v. Delo, 513
U.S. 298, 324, 327 (1995).
Petitioner directs the Court to the Declaration of Bart Reid
submitted
Declaration
during
was
Petitioner's
not
presented
considered new evidence.
963
( 9th Cir.
2003) .
PCR
at
See Griffin
Reid was a
proceedings.
Petitioner's
v.
Johnson,
Because
trial,
it
the
is
350 F.3d 950,
forensic scientist who stated
that he calculated Petitioner's likely blood alcohol content was
1 The direct appellate judgment issued on April 18,
2011. Petitioner signed
his PCR Petition on October 22, 2012, thereby allowing 553 untolled days to
accrue. Petitioner's prison transfer occurred on April 22, 2016, three and
one-half years after he had already breached the federal limitation period by
almost two-hundred days.
4 - OPINION AND ORDER
between
. 31
and
. 38,
a
range
which
would be
consistent
with
intermittent loss of consciousness and would interfere with his
ability to form intent.
Respondent's Exhibit 117. However,
Reid
specifically stated that his estimation "was only as accurate as
the information provided to me including petitioner's description
of the amounts and types of alcohol he had consumed." Id at 5.
Reid
did
not
base
his
BAC
estimate
upon
an
analysis
of
Petitioner's blood on the night in question. Instead, he utilized
what
Petitioner
probable range.
claimed
to
have
consumed
to
come
up
with
Relying on Petitioner's questionable candor,
a
as
well as his recollection from a night in which he claimed to be
severely intoxicated, would not lead jurors to necessarily adopt
Reid's figures.
More importantly, even if Petitioner had been as inebriated
as Reid theorized, Reid's Declaration does not establish or even
allude to a
fails
to
lack of intent on Petitioner's part.
the
Specifically,
trial.
contradict
it
through on a
strong evidence
was
evident
that
threat he made two days
broke up with him.
of
It therefore
intent
adduced
Petitioner
at
followed
earlier when the victim
He ominously told her to "think well" about
her decision, and that he "hated [her] smile." Trial Transcript,
p. 40.
Two
another
days
man
cousin),
later,
(whom
upon
Petitioner
seeing
did
the
not
victim
know
was
walking
the
with
victim's
Petitioner disfigured her face and tried to kill her.
Respondent's Exhibit 121. The link between Petitioner's threats
and his
perfectly
actions,
aware
separated by two
of
his
actions.
5 - OPINION AND ORDER
days,
suggests
Certainly,
the
that
he was
Court
cannot
conclude
that
Reid's
Declaration
amounts
to
exculpatory
scientific evidence so strong that, had the defense presented it
at
trial,
no
reasonable
juror
would
have
voted
to
convict
Petitioner. Consequently, he is not entitled to equitable tolling
and, thus, unable to excuse his untimely filing.
CONCLUSION
For the reasons identified above,
Habeas Corpus
to
issue
a
(#2)
the Petition for Writ of
is dismissed as untimely.
Certificate
of
Appealability
The Court declines
on
the
basis
that
petitioner has not made a substantial showing of the denial of a
constitutional right pursuant to 28 U.S.C. § 2253(c) (2).
IT IS SO ORDERED.
DATED this
/~""'- day of November, 2018.
Jones
tates District Judge
E ✓
6 - OPINION AND ORDER
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