SHEILA K. OBERTO, Magistrate Judge.
Petitioner Lonnie Defore Delaney is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Josie Gastelo, Warden, California Men's Colony, San Luis Obispo, California, moves to dismiss the petition as untimely. The undersigned agrees that the petition is untimely and recommends that the Court dismiss it.
In Kern County Superior Court on December 20, 2001, Petitioner was convicted of shooting at an inhabited dwelling house (Cal. Penal Code § 246), allowing the discharge of a firearm from a motor vehicle (Cal. Penal Code § 12034(b)), and possession of a firearm by a felon (Cal. Penal Code § 12021(a)(1)). On January 11, 2002, Petitioner moved for a new trial and for an order disclosing personal information of two jurors who allegedly failed to reveal to the court that they knew Petitioner. On January 22, 2002, the trial court denied the new trial motion. The court then imposed an indeterminate sentence of fifteen years to life imprisonment with the possibility of parole. On February 7, 2002, Petitioner filed a direct appeal to the California Court of Appeal, Fifth Appellate District.
On January 15, 2004, the Court of Appeal reversed and remanded the case to the Superior Court to conduct a hearing to determine the necessity of disclosure of confidential identifying information of two jurors who may have known Petitioner. On February 26, 2004, Petitioner filed a petition for review with the California Supreme Court, which denied the petition on March 30, 2004.
On August 6, 2004, the Kern County Superior Court convened a hearing regarding identification of the jurors and again denied Petitioner's new trial motion. As a result, the Superior Court reinstated the judgment of conviction. On February 3, 2006, the California Court of Appeal affirmed. On March 10, 2006, Petitioner filed a petition for review, which the California Supreme Court denied on April 26, 2006.
On July 26, 2005, Petitioner filed a petition for writ of habeas corpus in the Kern County Superior Court. On August 8, 2005, the Superior Court denied the petition, finding that Petitioner failed to state a prima facie case for relief. On August 8, 2006, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. The Court of Appeal summarily denied the petition on September 14, 2006. On June 13, 2007, Petitioner filed a habeas petition in the California Supreme Court, which summarily denied the petition on November 28, 2007.
On March 24, 2008, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court. See Delaney v. Dextor (E.D.Cal.) (No. 1:08-cv-00418-AWI-SMS HC). On July 7, 2008, the Court adopted the Magistrate Judge's findings that the petition did not allege facts indicating exhaustion of claims and dismissed the petition with leave to amend. Id. On September 8, 2008, the Court dismissed the petition for failure to prosecute. Id.
On December 23, 2013, Petitioner filed a petition for writ of habeas corpus in the Kern County Superior Court. The petition presented the declaration of Isaac Darrell Rand, the passenger who pleaded guilty to charges arising from his firing a gun from the car that Petitioner was driving. Rand declared that Petitioner was not present at the scene of the shooting and that the car was driven by Petitioner's late brother Donte Delaney.
On November 25, 2014, Petitioner filed another habeas petition in the Court of Appeal, which summarily denied the petition on January 23, 2015. On March 23, 2015, Petitioner filed a petition with the California Supreme Court, which summarily denied it on July 8, 2015.
Petitioner filed the above-captioned petition on August 4, 2015. Respondent moved to dismiss the petition as untimely on February 5, 2016.
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 327 (1997). AEDPA provides a one-year period of limitation in which a petitioner may file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The limitations period is measured from the latest of:
28 U.S.C. § 2244(d)(1).
Direct review in the State of California ended April 26, 2006, when the California Supreme Court denied the petition for review. The statutory limitation period began on July 26, 2006, following the expiration of the 90-day period in which to file a petition for writ of certiorari in the United States Supreme Court.
The limitation period is tolled during the pendency of a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim. 28 U.S.C. § 2244(d)(2). As detailed in the procedural and factual background above, Petitioner has filed multiple state collateral actions.
Under California law, "a state prisoner may seek review of an adverse lower court decision by filing the original petition (rather than a notice of appeal) in the higher court, and that petition is timely if filed within a `reasonable time.'" Evans v. Chavis, 546 U.S. 189, 192-93 (2006). "As long as the prisoner filed a petition for appellate review within a `reasonable time,' he could count as `pending' (and add to the 1-year time limit) the days between (1) the time the lower state court reached an adverse decision; and (2) the day he filed a petition in the higher state court." Id. at 193.
When the state court has explicitly ruled that the gap period between the lower court's decision and the prisoner's filing of an appeal or new petition was unreasonable, a federal court need conduct no further inquiry. Carey v. Saffold, 536 U.S. 214, 225-26 (2002). If the state court did not explicitly state whether the gap period was reasonable or unreasonable, the federal court must look to the state supreme court's decisions to determine whether the state would consider the second action to have been filed within a reasonable time. Evans, 546 U.S. at 198.
In California, unjustified delays greater than six months are clearly unreasonable. Id. at 201. The Ninth Circuit agreed that in the absence of unusual facts justifying further delay, "a time gap in excess of six months was too long." Waldrip v. Hall, 548 F.3d 729, 731 (9th Cir. 2008). In many cases, shorter gaps have been found unreasonable. See, e.g., Stancle v. Clay, 692 F.3d 948, 956 (9th Cir. 2012) (denying tolling for an 82-day delay); Velasquez v. Kirkland, 639 F.3d 964, 967-69 (9th Cir. 2011) (denying tolling for 80 and 91-day gaps); Banjo v. Ayers, 614 F.3d 964, 970 (9th Cir. 2010) (finding 146-day gap unreasonable); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per curiam) (no tolling for delays of 101 and 115 days).
Petitioner's first habeas petition, filed in Kern County Superior Court on July 26, 2005, was resolved on August 8, 2005, before the conclusion of his direct appeal. As a result, no tolling is necessary for this action. See Waldrip, 548 F.3d at 735 (holding that a habeas petition filed and resolved before state direct review became final has no effect on the timeliness of the ultimate federal filing).
The statutory limitations period began on July 26, 2006, and ran for 13 days before Petitioner filed a habeas petition in the Court of Appeal on August 8, 2014. After the Court of Appeal denied the petition on September 14, 2006 (37 days), Petitioner took no further action until filing a habeas petition in the California Supreme Court 272 days later on June 13, 2007. Under the cases summarized above, Petitioner is not entitled to tolling during the 272-day gap, at the end of which the remaining limitations period was 80 days. The statute was tolled for 168 days from its filing on June 13, 2007, until the California Supreme Court summarily denied the petition on November 28, 2007. The limitation period then ended 80 days later on February 18, 2008. Petitioner's subsequent state actions did not revive the limitations period. Ferguson v. Palmateer, 321 F.3d 820,823 (9th Cir. 2003).
The above-captioned petition filed on August 4, 2015, was untimely.
In light of Rand's declaration, Petitioner contends that the statute of limitations does not apply because he is actually innocent. Respondent disagrees.
A prisoner's actual innocence, if proven, permits him to circumvent the statute of limitations. Schlup v. Delo, 513 U.S. 298, 315 (1995). "[T]enable actual-innocence gateway pleas are rare." McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup, 513 U.S. at 329. "[T]he Schlup standard is demanding and permits review only in the extraordinary case." House v. Bell, 547 U.S. 518, 538 (2006) (internal quote omitted).
In evaluating an actual innocence claim, "[t]he court's function is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors." Id. The court must consider the "overall, newly supplemented record," including the credibility of the witnesses presented at trial. Id.
In this case, the relevant question is the identification of Petitioner as the individual driving the maroon car from which shots were fired at the victims' house, on L Street in Bakersfield, on June 7, 2000. Petitioner contends that in light of the testimony of Latasha Anderson and Lakevia Davis that they had lied in their initial police statements because they were afraid of the police, who had threatened to take their children away, no reasonable juror would have voted to convict him if they had learned of Rand's statement.
Trial testimony revealed that Bakersfield Police Officers Christopher Feola and Joel Luera, who had been investigating a nearby incident, responded to the scene immediately upon hearing the gunshots.
When the car stopped in front of two houses on K Street, the spotlight illuminated an armed black man as he exited the passenger door and fled. Feola testified that the weapon had a distinctive barrel and a protruding magazine. As Feola and Luera pursued the passenger in their squad car, Feola saw the other suspect slumped in the driver's seat of the burgundy car. He testified that he thought "it was one of the Delaney brothers," explaining that the brothers had unusually large heads and distinctive chins.
Using the partial license plate number, police determined that the burgundy car was a Mazda registered to Latasha Anderson. On June 8, 2000, police located the car parked outside an apartment on Second Street near the scene of the shooting. Anderson and her cousin, Lakevia Davis, were in the apartment. Anderson told officers that she was the only person who used the car, that she had used it early on the evening of June 7, 2000, and then brought her keys inside and left them on the kitchen counter. Davis said no one had used the car that night.
Investigating Officer Gaines told Anderson that he did not believe her account, that he was going to impound her car for investigation, and that she and Davis could well be arrested as co-conspirators. He threatened them with jail if they did not tell him the truth. Gaines described Anderson and Davis as belligerent and uncooperative. He denied threatening to take away their children as Anderson and Davis later alleged. Officers put Anderson and Davis, neither of whom was handcuffed, into separate patrol cars for transport to the police station. The Court of Appeal recounted:
Later, Anderson and Davis were reluctant to testify in Petitioner's trial and ultimately changed their stories:
In rebuttal, the prosecution presented testimony from the police officers concerning the Anderson's and Davis's changing their stories:
The defense introduced no evidence or witnesses. Petitioner did not testify.
The Kern County Superior Court denied the 2013 petition for writ of habeas corpus, holding that neither constitutional error nor new evidence pointed to Petitioner's innocence.
First, the evidence in Rand's declaration existed at the time of trial. Rand offered no adequate explanation for his delay in coming forward.
Second, Rand's declaration focused on police procedures rather than providing substantive detail regarding the night of the shooting. The declaration misstated the date of the incident and rationalized that Rand entered his guilty plea "as protecting a friend and not to exonerate petitioner." Lodged Doc. 16. The state court found Rand's statement that Petitioner was not present at the shooting to be conclusory and not grounded in facts.
Finally, the state court rejected the assumption that Anderson and Davis had reliably recanted the initial police statements in which they implicated Petitioner. The jury rejected Anderson's and Davis's allegations of police misconduct as not credible in light of the substantial physical evidence and the prosecution's rebuttal testimony from the police officers. Because there was no way to effectively cross-examine Anderson and Davis, their testimony at trial had to be viewed with suspicion, particularly since their recantations were insufficient to undermine the finality of the judgment.
The jury had the opportunity to listen to the complete taped interviews with Anderson and Davis, and Petitioner provided no other evidence that police used coercive tactics against Anderson and Davis. Although Anderson and Davis may well have been afraid of being jailed as accessories to the shooting, the evidence established that Anderson and Davis were "equally if not more frightened to testify against petitioner." Lodged Doc. 16.
According to the standard set forth above, Petitioner could not reach the threshold requirement of actual innocence "unless he persuade[d] the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup, 513 U.S. at 329. Petitioner failed to meet that standard.
The undersigned agrees that Rand's declaration, when considered with the existing record, does not establish that "no juror, acting reasonably, would have voted to find [Petitioner] guilty beyond a reasonable doubt." Schlup, 513 U.S. at 329. Rand's declaration presents serious credibility issues because of (1) the thirteen-year delay between the incident and the declaration; (2) the near absence of detail regarding the incident in the declaration; (3) the conclusory nature of the affidavit; (4) Petitioner's superior position to Rand in the gang hierarchy; and (5) the mentoring relationship between Petitioner ("Squeak") and Rand ("Lil Squeak"). Further, because the jury had the opportunity to hear the recorded interviews of Anderson and Davis, no reasonable juror would likely agree with Petitioner's assumption that Anderson's and Davis's trial testimony was credible but that their statements to police immediately following the shooting were incredible and the product of improper police coercion.
Respondent contends that even if Petitioner had managed to surmount the substantial barriers to proving actual innocence, the petition could not proceed because all the grounds for relief alleged in it have not been exhausted. The undersigned agrees.
A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365; Keeney v. Tamayo-Reyes, 504 U.S. 1, 8 (1992). The petitioner must also have specifically informed the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66. If the petition is not fully exhausted, the Court must dismiss it as a "mixed petition." 28 U.S.C. § 2254(b)(1); Rose, 455 U.S. at 521-22.
As his seventh ground for relief, petitioner contends that his Sixth Amendment right to effective assistance of counsel was violated because trial counsel permitted an unqualified police officer to testify as a gang expert. Petitioner never advanced a claim of ineffective assistance of counsel in state court. Accordingly, even if Petitioner could have established actual innocence to circumvent the statute of limitations, the Court would have had to dismiss the petition as not fully exhausted.
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides:
If a court denies a habeas petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his. . . part." Miller-El, 537 U.S. at 338.
Reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief to be debatable or wrong, or conclude that the issues presented required further adjudication. Accordingly, the Court should decline to issue a certificate of appealability.
The undersigned recommends that the Court dismiss the petition for writ of habeas corpus and decline to issue a certificate of appealability.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C § 636(b)(1). Within
