KAREN S. CRAWFORD, Magistrate Judge.
Before the Court is a First Amended Petition for Writ of Habeas Corpus ("Amended Petition") filed on August 10, 2016, by petitioner William T. Mace ("petitioner"), a state prisoner proceeding pro se and in forma pauperis. [Doc. No. 5.] On November 17, 2016, respondent W.L. Montgomery ("respondent") filed a Motion to Dismiss the First Amended Petition for Writ of Habeas Corpus as untimely filed. [Doc. No. 11.] On March 10, 2017, petitioner filed an Opposition to the Motion to Dismiss. [Doc. No. 15.] After a thorough review of the Amended Petition [Doc. No. 5], respondent's Motion to Dismiss [Doc. No. 11], petitioner's Opposition thereto [Doc. No. 16], and the supporting documents submitted by the parties [12], the Court
The record of petitioner's prior state and federal judicial proceedings presented in the Amended Petition spans approximately six years, beginning with his 2011 criminal conviction and sentencing, until the August 2016 filing of the Amended Petition, which is now before the Court. In July 2011, petitioner was convicted of one count of murder and two counts of attempted murder in San Diego Superior Court.
On May 6, 2014, petitioner filed a petition for review to exhaust state remedies in the California Supreme Court. [Doc. No. 12-2.] On June 11, 2014, the California Supreme Court summarily denied the petition in that case
On December 15, 2014, petitioner filed a second application with the Court of Appeal, Fourth Appellate District, requesting an order directing petitioner's appellate trial counsel to furnish petitioner's appellate trial files to petitioner. [Doc. No. 12-7.] On December 15, 2014, the Court deemed the application a petition for writ of mandate, and assigned it case number D067129. [Doc. No. 12-8.] On December 17, 2014, the Court denied petitioner's application directing petitioner's appellate trial counsel to furnish petitioner's appellate trial files to petitioner. Id.
On September 23, 2015, petitioner filed a petition for writ of habeas corpus in the Superior Court of San Diego, case number HSC11516, alleging he received ineffective assistance of counsel from both his trial and appellate counsel, and that insufficient evidence supported his conviction. [Doc. No. 12-9.] On October 1, 2015, the Superior Court of San Diego denied the petition on the merits. [Doc. No. 12-10.]
On December 7, 2015, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fourth Appellate District, at case number D069352, alleging ineffective assistance counsel from his trial and appellate counsel, and insufficient evidence to support his conviction. [Doc. No. 12-11.] On December 9, 2015, the Court of Appeal, Fourth Appellate District, denied the petition on its merits. [Doc. No. 12-12.]
On January 19, 2016, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, case number S231901, again alleging ineffective assistance of counsel from his trial and appellate counsel, and insufficient evidence. [Doc. No. 12-13.] On April 27, 2016, the California Supreme Court denied the petition for writ of habeas corpus. [Doc. No. 12-14.]
On July 11, 2016, petitioner filed a petition for writ of habeas corpus in this Court (hereinafter "First Federal Petition"). [Doc. No. 1.] On July 18, 2016, this Court denied the First Federal Petition without prejudice for failing to pay the filing fee and failing to name a respondent. [Doc. No. 2.]
The instant Amended Petition was filed on August 10, 2016. [Doc. No. 5.] The Amended Petition presents four grounds for relief: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) insufficient evidence to support his convictions; and (4) trial court's denial of the defense request to grant immunity to a defense witness deprived petitioner of his rights to due process, among other things. [Doc. No. 5, at pp. 6-10.]
The Amended Petition is governed by 28 U.S.C. § 2254, as amended by the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"). Section 2254(a) sets forth the scope of review for federal habeas corpus claims:
28 U.S.C. § 2254(a) and (d).
To obtain federal habeas relief, a petitioner must satisfy either § 2254(d)(1) or § 2254(d)(2). See Williams v. Taylor, 529 U.S. 362, 399, 403 (2000). Under § 2254(d)(1), "a state court decision is `contrary to our clearly established [federal precedent] if the state court applies a rule that contradicts the governing law set forth in our cases' or `if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'" Lockyer v. Andrade, 538 U.S. 63, 73 (2003). Under § 2254(d)(2), "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 75. The Supreme Court has clarified that even an erroneous or incorrect state court application of clearly established law constitutes an insufficient basis to grant a habeas petition, unless petitioner establishes that the state court's application was "objectively unreasonable." Id.
When there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). If the dispositive state court order does not provide any reasoning to support its decision, federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established United States Supreme Court law. Allen v. Ornoski, 435 F.3d 946, 955 (9th Cir. 2006). A state court need not cite Supreme Court precedent when resolving a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8 (2002). Absent citations to Supreme Court precedent, habeas relief is not merited if the state court decision neither contradicts the reasoning nor the results of Supreme Court holdings. Id.
Any habeas petition filed in federal court after April 24, 1996 is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under the AEDPA, a state prisoner has one year from the finality of a state court judgment to file a writ of habeas corpus in federal court. 28 U.S.C. § 2244(d); Lawrence v. Florida, 549 U.S. 327, 329 (2007). Once the AEDPA limitations period expires, a subsequently filed petition for post-conviction relief from the judgment cannot restart the timeliness clock. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); see also Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that "§ 2244(d) does not permit reinitiation of the limitations period that has ended before the state petition was filed"); Lott v. Mueller, 304 F.3d 918, 922 (9th Cir. 2002) (prisoners' "ability to challenge the lawfulness of their incarceration is permanently foreclosed" after the one-year limitations period expires).
Normally, a "judgment bec[omes] final by the conclusion of direct review or the expiration of the time for seeking such review," at which point the AEDPA clock starts running. 28 U.S.C. § 2244(d)(1)(A); see Wixom v. Washington, 264 F.3d 894, 897-98 (9th Cir. 2001). For purposes of 28 U.S.C. § 2254, "judgment" refers "to the judgment of conviction and sentence," and "direct review" is the "direct appellate review of that judgment." Redd v. McGrath, 342 F.3d 1077, 1081 (9th Cir. 2003); see Burton v. Stewart, 549 U.S. 147, 156-57 (2007) (specifying that "final judgment" includes both the conviction and sentence under which the prisoner is in custody). For 28 U.S.C. § 2244(d)(1)(A) calculation purposes, the direct review period includes the 90-day period within which a petitioner may file a petition for writ of certiorari in the United States Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999); Hemmerle v. Schiro, 495 F.3d 1069, 1073-74 (9th Cir. 2007).
The AEDPA limitations period is subject to statutory tolling. 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 shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2254(d)(2); see Carey v. Saffold, 536 U.S. 214, 219-20 (2002) (holding that the time during which a state application is "pending" includes the period between a lower court's denial of relief and the filing in a higher court, provided that the filing in the higher court is timely under state law). Under California's system of independent collateral review, "a prisoner seeks review of a lower court's denial of relief by filing an original petition for habeas corpus relief in the reviewing court." Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010). "Post-conviction review is `pending,' and thus the statute of limitations tolls, while a prisoner is pursuing a full round of habeas relief in the state court," including the time between a lower court's adverse ruling and the prisoner's filing for relief in a higher state court. Id. (citing Carey, 536 U.S. at 219-21). "The period between a California lower court's denial of review and the filing of an original petition in a higher court is tolled — because it is part of a single round of habeas relief — so long as the filing is timely under California law." Banjo, 614 F.3d at 968 (citing Evans v. Chavis, 546 U.S. 189, 192-93 (2006) (finding a petition timely filed in California if it is filed within undefined "reasonable time")); see Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008).
When a state court rejects a prisoner's application for post-conviction relief for failure to comply with state-law conditions of filing, the application is not considered "properly filed" as required for statutory tolling. Zepeda v. Walker, 581 F.3d 1013, 1018 (9th Cir. 2009) (citing 28 U.S.C.A. § 2244(d)(2)); Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007) (untimely petition under state law does not toll the statute because such a petition is "neither `properly filed' nor `pending'"). "[T]ime limits, no matter their form, are `filing' conditions," and when the state court rejected a petition "as untimely, it was not `properly filed,' and [the petitioner was] not entitled to statutory tolling under § 2244(d)(2)." Pace v. DiGuglielmo, 544 U.S. 408, 414, 417 (2005) ("When a post-conviction petition is untimely under state law, `that [is] the end of the matter' for purposes of § 2244(d)(2).") (quoting Carey, 536 U.S. at 226).
The AEDPA statute of limitations can be equitably tolled, however, in appropriate circumstances. Holland v. Florida, 560 U.S. 631, 645-646 (2010) (as "a nonjurisdictional federal statute of limitations" [AEDPA] is "subject to a `rebuttable presumption' in favor of `equitable tolling"); see also, Laws v. Lamarque, 351 F.3d 919 (9th Cir. 2003); Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011). Nevertheless, "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 circumstances stood in his way' and prevented timely filing." Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418). The obstructing casual circumstances must be "`beyond a prisoner's control' and `make it impossible to file a petition on time.'" Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012) (quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9
A federal habeas court should "begin [its AEDPA statute of limitations analysis] with the relevant timeliness calculations." Miranda, 292 F.3d at 1065; 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 [statutory or] equitable tolling should be applied").
In the Motion to Dismiss, respondent contends that the Amended Petition is time-barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). [Doc. No. 11-1, at p. 8.] Respondent contends that the timeliness calculations should commence on September 9, 2014, based on the following explanation:
[Doc. No. 11-1, p. 9.]; see Bowen, 188 F.3d at 1159.
Based on the factual record, petitioner did not file an application for post-conviction or other collateral review of the pertinent judgment until September 23, 2015, when he filed his habeas petition in Superior Court at case number HSC11516, more than one year after the date his direct appeal became final on September 9, 2014. [Doc. No. 12-9.] Although petitioner filed two applications with the state court of appeal requesting an order for trial counsel to deliver his trial files on October 20, 2014, and December 15, 2014, these filings were not applications for collateral review and did not serve to toll the statute of limitations. [Doc. Nos. 12-4, 12-7]; Ramirez v. Yates, 571 F.3d 993, 999-1000 (9th Cir. 2009) (applications for discovery motions do not statutorily toll the limitations period because prisoners could substantially extend the time for filing habeas petitions); see also Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001) (applications under state law to obtain additional documents concerning the investigation of petitioner's offense do not challenge the conviction, and therefore do not statutorily toll the limitations period).
By the time petitioner filed his first state collateral petition on September 23, 2015, the statute of limitations had already expired. Ferguson, 321 F.3d at 823 (holding that "§ 2244(d) does not permit reinitiation of the limitations period that has ended before the state petition was filed"). Accordingly, petitioner's First Federal Petition, filed on July 11, 2016, nearly a year after the first state collateral petition, was also untimely.
The one-year limitations period under AEDPA is also subject to equitable tolling in certain rare circumstances. Holland, 560 U.S. at 645. The petitioner bears the burden of proving that equitable tolling is appropriate by establishing: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way" of timely filing his petition. Pace, 544 U.S. at 418; see Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). More specifically, the petitioner must show that "the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time." Ramirez, 571 F.3d at 997. The determinations of whether a petitioner is entitled to equitable tolling is a "fact-specific inquiry." Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (citing Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000)). Equitable tolling "is unavailable in most cases," as the "threshold necessary to trigger equitable tolling is very high." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999); Miranda, 292 F.3d at 1066.
Petitioner has not claimed that he is entitled to equitable tolling, nor has he submitted anything that would support such a claim. As evidenced by the record, petitioner has failed to establish that he was diligent in pursuing his rights. On June 11, 2014, the California Supreme Court denied petitioner's petition for review in case number S218377, but petitioner waited over four months, until October 20, 2014, to file an application with the Court of Appeal, Fourth Appellate District, requesting an order directing petitioner's appellate trial counsel to furnish petitioner's appellate trial files to him. [Doc. Nos. 12-4, 12-7.] When the state court denied his second application for an order directing petitioner's appellate trial counsel to furnish petitioner's appellate trial files to petitioner, petitioner waited nine months, until September 23, 2015, before filing a state habeas petition. [Doc. No. 9.] Thus, petitioner has not been diligent in pursuing his rights. Similarly, petitioner has failed to establish that there were any extraordinary circumstance(s) that prevented him from filing a timely petition. Accordingly, petitioner is not entitled to equitable tolling.
A credible claim of actual innocence supported by newly discovered evidence also constitutes an equitable exception to the one-year limitations period under AEDPA. Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011). In addition to proving that equitable tolling is appropriate under AEDPA, a petitioner who presents newly discovered evidence of his actual innocence must demonstrate that, "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995); Lee, 653 F.3d at 938. "Tenable actual innocence . . . pleas are rare." McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). In Schlup, the Court noted that a claim of innocence is "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Schlup, 513 U.S. at 315 (quoting Herrera v. Collins, 504 U.S. 390, 404 (1993)); see also House v. Ball, 547 U.S. 518, 539 (2006) (noting that the case at hand involved a "federal habeas petition seeking consideration of defaulted claims based on a showing of actual innocence").
In Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997), the Ninth Circuit held that "a habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Demonstrating probable innocence requires "a stronger showing than insufficiency of the evidence to convict." Id. In Bousley v. United States, 523 U.S. 614 (1998), the Supreme Court explained that, "[t]o establish actual innocence, a petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." 523 U.S. at 623 (internal citations omitted). In meeting this burden, the petitioner is not limited to the existing trial record because the issue is "factual innocence, not mere legal insufficiency." Id.
Here, petitioner admitted at trial "that while he was a passenger in a vehicle traveling on a freeway, he fired several shots at another vehicle, including the shot that killed the murder victim, but claimed that he did so in self-defense because he believed that an occupant of the other vehicle was reaching for something with which to attack him." [Doc. No. 12-12.] Petitioner faults trial counsel for not presenting testimony from a ballistics expert whom petitioner claims would have explained, based on bullet trajectories and fragments, that petitioner could not have fired some of the shots. [Doc. No. 12.] Petitioner also faults his appellate counsel for not presenting trial counsel's incompetence as a ground for reversal on appeal. Id. He further contends that the evidence at trial was insufficient to prove that he had the mental state required for the crimes of which he was convicted because he simply fired "warning shots" at the vehicle and did not intend to kill any of its occupants. Id.
Respondent contends that any favorable expert would have been rejected by the jury in light of petitioner's own testimony admitting that neither he nor his friends were in imminent danger at the time he shot at the car in which the victim was riding, and admitting that he fired before he could determine whether a passenger in the other car was actually reaching for something. [Doc. No. 11-1, at p. 13.] Testimony from a ballistics expert would not have changed the fact that petitioner's claim that he acted in self-defense was contradicted by his own testimony. Id. This Court concurs.
Petitioner's claim that he acted in self-defense was contradicted by his own testimony. No testimony from a ballistics expert would have changed this. Petitioner's claims to the contrary are, at best, speculative and conclusory. Accordingly, petitioner has failed to show that the actual innocence exception applies to his failure to timely file a federal habeas petition.
As this Court has determined that no tolling — statutory or equitable — can save this Petition from a finding that it is time-barred under AEDPA's one year statute of limitations, it will refrain from addressing the merits of the claims presented in petitioner's Amended Petition. [Doc. No. 5.]
Petitioner filed his First Federal Petition on July 11, 2016 [Doc. No. 1] and his Amended Petition on August 10, 2016 [Doc. No. 5]. However, the AEDPA statute of limitations, including all applicable statutory tolling, ended on September 9, 2015. Further, petitioner has failed to carry his burden of establishing that he qualifies for equitable tolling. Accordingly, this Court
With respect to the recommendations made herein, this Report and Recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1).
