REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Michael W. Fitzgerald, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on April 29, 2016, bearing a signature and service date of April 25, 2016. Respondent filed an Answer on June 16, 2016, contending that the Petition is untimely. Petitioner filed a Traverse on August 9, 2016.
BACKGROUND
In 1992, a jury found Petitioner and co-defendant Conrad Estrada guilty of first degree murder, robbery and burglary, and found true the special circumstance allegation that the murder was committed during the robbery and burglary. See People v. Estrada, 11 Cal.4th 568, 572, 46 Cal.Rptr.2d 586, 904 P.2d 1197 (1995), cert. denied, 517 U.S. 1159 (1996). The jury found true the allegation that Estrada personally used a knife in the commission of the offenses, but found such allegation not true as to Petitioner (id. at 572). The court found true the allegations that Petitioner had suffered two prior serious felony convictions within the meaning of California Penal Code section 667(a) (Respondent's Lodgment 9-2, pp. 2-3; see People v. Estrada, 11 Cal. 4th at 572). Petitioner received a sentence of life without the possibility of parole plus ten years (Petition, ECF Dkt. No. 1, p. 8; see People v. Estrada, 11 Cal. 4th at 572).1
The California Court of Appeal affirmed the judgment (Respondent's Lodgment 2; see People v. Estrada, 34 Cal.Rptr.2d 308 (Cal. App. 1994). On November 20, 1995, the California Supreme Court also affirmed (see Respondent's Lodgment 4; People v. Estrada, 11 Cal.4th 568, 46 Cal.Rptr.2d 586).
Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court on January 12, 2011, which that court apparently denied on March 9, 2011 (Respondent's Lodgment 5).2 More than four years later, on October 5, 2015, Petitioner filed a habeas corpus petition in the California Court of Appeal, bearing a signature date of September 29, 2015, which the Court of Appeal denied in a brief order on November 6, 2015 (Respondent's Lodgments 6, 7). On December 7, 2015, Petitioner filed a habeas corpus petition in the California Supreme Court, bearing a signature date of November 30, 2015, which that court denied summarily on March 9, 2016 (Respondent's Lodgments 8, 9).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Estrada, 34 Cal.Rptr.2d 308 (Cal. App. 1994). See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state court decision).
. . . [D]efendants, who did not know each other prior to this incident, met each other on the afternoon of October 7, 1991, at a mutual friend's house in El Monte. Siqueros3 asked Estrada for a ride home to Whittier. On their way, in the late afternoon, Estrada drove to the residence of Rudolph Jaime in El Monte. Defendant Estrada was well-acquainted with Jaime, as Jaime's former girlfriend, Ophelia Ramirez, was the mother of Estrada's girlfriend, Theresa Ramirez. Ophelia lived at Jaime's residence for some time in 1991, and Estrada was a frequent visitor. In approximately August of 1991, Ophelia moved out of Jaime's residence, but left some items of personal property, including a portable television set, behind.
On October 7, 1991, Mrs. Galardo, observing from the residence next door, saw the two men talking to Jaime in the front yard, then walk to their truck while Jaime locked the front gate and returned to his house. The men sat in the truck for 5 to 10 minutes, then exited the truck, jumped over the fence and entered the front door.4 Mrs. Galardo then heard a lot of noise, which included the sound of furniture being thrown around, for approximately 10 minutes. During that period, either one or both men left the house, one of whom carried a television set. After putting the T.V. set down in front of the house, he (or they) reentered the house. Still hearing sounds of fighting, Mrs. Galardo called the police.
Defendants were still in Jaime's home when the police arrived. After initially evading arrest (Siqueros was brandishing a rifle when the police first attempted to arrest him), both men were taken into custody. The officers observed blood on Siqueros's hands and on Estrada's face, pants and body, and also noted that Estrada's hands were bleeding.
The officers entered the house and found Jaime lying on his back with major injuries, including cuts and stab wounds to the chest, neck and head. Jaime was able to tell the officers that two people were involved, and that he did not know his assailants.
Estrada was transported to Arcadia Methodist Hospital for treatment of cuts he had sustained on his chest, hands and face. Three crumpled dollar bills were recovered from Estrada's left pants pocket, and nine folded dollar bills with blood on them were removed from his right pants pocket.
Officer Carlson of the El Monte Police Department transported Siqueros to the police station. During transport, Siqueros asked him what the charges were, to which Carlson responded attempted murder and burglary. Siqueros began calling Carlson derogatory names, cursing, and questioning his heritage. Siqueros then stated, "I am the one you want," and "Yeah, I am the mother fucking one you want asshole," and "Wait until I get out of prison. I am going to kill your mother fucking ass." Soon thereafter, Siqueros stated to Carlson, "You won't find any fucking weapon on me. I haven't got a mother fucking thing on me."
An expert who performed an analysis on the blood recovered at the scene testified that the victim's blood was found on a cardboard box at the house, the recovered knife, Siqueros's boxer shorts and Estrada's pants. Estrada's blood was found on the same cardboard box, the bathroom window, and the living room wall. Many other items at the scene were sources of blood samples, including a golf shirt, the bedroom wall, a pair of scissors, a rifle case, the money recovered from Estrada's pocket, Siqueros's pants, a rifle and a fork. However, due to a similarity in the blood types of Jaime and Estrada, the serologist was unable to identify the source of these blood samples. However, none of the blood samples recovered matched Siqueros's blood type.
The coroner, Dr. Carpenter, determined that Jaime died from any one of four fatal wounds to his body. He suffered 7 to 10 stab wounds in his body, and 20 to 30 lacerations and incisions in the facial area. Carpenter also testified that the wounds to Jaime's face were consistent with the use of a fork, and that the wound pattern suggested the victim was pinned down and immobile when the lacerations were made to his face. Finally, Carpenter testified that the knife recovered from the scene did not have a hilt, which could explain how a person wielding the weapon could slice his own hand, since nothing would prevent his hand from slipping down onto the blade.
Siqueros's defense
Dr. Root, a pathologist, testified that the cuts to the victim's face were not consistent with a fork, but rather with a knife.
Officer Reneer testified that in the early morning hours of October 7, 1991, approximately 18 hours before the murder, he responded to a disturbance at a local bar. The bar owner, who was Siqueros's aunt, told him that there had been a fight inside. Siqueros's aunt told Reneer that she had only seen her nephew on two occasions: Once when he was four years old and again on the occasion of the bar fight.
Siqueros testified that on October 7, 1991, he had met Estrada and the two had some beers. He asked Estrada for a ride home. On the way, they stopped at Jaime's house, whom Siqueros did not know, and had a few beers.
Siqueros moved the television set because Estrada had asked him to help move some of Ophelia's things. When he returned to the house, Jaime and Estrada had started arguing. Siqueros went into the kitchen to get a beer. He then heard noises which sounded like someone punching someone. When he returned, he saw a body lying on the ground "full of blood."
Siqueros picked up the rifle because he was scared. Estrada came into the kitchen and was a "bloody mess." When he surrendered to police, he heard Estrada yelling, "Leave him alone. He didn't do anything."
Estrada's Defense
Estrada testified that on October 7, 1991, he was supposed to make a delivery for his parents' party rental business, but instead went to a friend's house where he met Siqueros. The two drank beer until late in the afternoon. Siqueros asked for a ride home and Estrada agreed. On the way, Estrada decided to stop at Jaime's house to have a few beers.
After drinking a few beers with Jaime, defendants returned to Estrada's truck. Estrada remembered that Jaime had asked him to get some of Ophelia's things out of the house. Siqueros agreed to help him move those items. The two men jumped over the fence and knocked on the front door. Jaime told them to come in. Jaime said he still wanted them to take Ophelia's things. Siqueros then took the television to the truck.
While Siqueros was outside, Jaime began pressing Estrada about who Ophelia was with. The two began to argue, and Siqueros went to the kitchen to get a beer. Jaime and Estrada pushed, and then hit, each other, which led to a fight. Estrada knocked Jaime down. Jaime got up with a kitchen knife, which he swung at Estrada. Estrada grabbed the knife, which cut his hand.
Jaime grabbed Estrada by the neck. Estrada told him to let go, but Jaime would not. Estrada stabbed Jaime in the stomach. He stabbed the victim numerous times, and continued stabbing Jaime after he fell to the floor.
Siqueros was not involved in the altercation with Jaime.
At the hospital, Estrada asked an officer, "Why did he [meaning Jaime] do that?"
Estrada acknowledged on direct examination that he had been convicted of receiving stolen property, possession of narcotics, spousal abuse and participating in a prison riot.
Rebuttal
Officer Carlson, who was present when Siqueros surrendered, never heard Estrada say, "Leave him alone. He didn't do anything."
Office Castruita testified that Estrada stated, "How is Rudy [Jaime]? How is Rudy? Why did he have to do that to him? How is Rudy?"
. . .
Siqueros was charged and tried for first degree felony murder based on his participation in the burglary and robbery of victim Jaime, which resulted in Jaime's death.
(Respondent's Lodgment 1, pp. 2-8, 28; see People v. Estrada, 34 Cal.Rptr.2d 308, 309-11, 315 (1994) (footnote renumbered)).
PETITIONER'S CONTENTIONS
Although the Petition is somewhat confused, it appears Petitioner contends:
1. The trial court allegedly committed instructional error, by assertedly:
a. giving improper and contradictory instructions which allegedly confused the jury, including allegedly improper felony-murder instructions and an allegedly incorrect response to a jury question;
b. failing to instruct the jury, as allegedly mandated by Rosemond v. United States, 134 S.Ct. 1240 (2014) ("Rosemond"), that to find Petitioner guilty of the crimes on an aiding and abetting theory the jury was required to find Petitioner knew in advance that Estrada intended to murder Jaime; and
c. giving aiding and abetting instructions which allegedly violated the principles espoused in People v. Chiu, 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972 (2014) ("Chiu") (holding that an aider and abettor cannot be convicted of first degree premeditated murder under the natural and probable consequences theory of aiding and abetting); and
2. Petitioner allegedly is entitled to resentencing under People v. Banks, 61 Cal.4th 788, 189 Cal.Rptr.3d 208, 351 P.3d 330 (2015) ("Banks") (addressing the circumstances under which an accomplice who lacks intent to kill may be eligible for the death penalty or life without parole).
DISCUSSION
The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(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.
(2) 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.
"AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis." Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).
Petitioner's conviction became final years prior to the effective date of the AEDPA. See Rhines v. Weber, 544 U.S. 269, 272 (2005) (conviction becomes final following United States Supreme Court's denial of petition for certiorari). Accordingly, Petitioner had a one-year "grace period" following the effective date of the AEDPA within which to file a federal habeas petition. See Wood v. Milyard, 132 S.Ct. 1826, 1831 (2012); Rhoades v. Henry, 598 F.3d 511, 519 (9th Cir. 2010). Therefore, the statute of limitations began to run on April 25, 1996, unless subsections B, C, or D of 28 U.S.C. section 2244(d)(1) furnish a later accrual date. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge).
Subsection B of 28 U.S.C. section 2244(d)(1) has no application in the present case. Petitioner does not allege, and this Court finds no indication, that any illegal state action prevented Petitioner from filing the present Petition sooner.
Contrary to Petitioner's argument (see Traverse, pp. 2-3), subsection C of 28 U.S.C. section 2244(d)(1) also has no application in the present case. As discussed below, the Petition does not assert any "constitutional right" "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." See Dodd v. United States, 545 U.S. 353, 360 (2005) (construing identical language in section 2255 as expressing "clear" congressional intent that delayed accrual inapplicable unless the United States Supreme Court itself has made the new rule retroactive); Tyler v. Cain, 533 U.S. 656, 664-68 (2001) (for purposes of second or successive motions under 28 U.S.C. section 2255, a new rule is made retroactive to cases on collateral review only if the Supreme Court itself holds the new rule to be retroactive); Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002), cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity principles of Teague v. Lane, 489 U.S. 288 (1989), to analysis of delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)).
Petitioner argues that the Petition asserts a constitutional right "newly recognized" in Rosemond (see Traverse, pp. 2-3). In Rosemond, the Supreme Court held, as a matter of statutory interpretation, that to prove a defendant guilty of using or carrying a firearm during a crime of violence or a drug trafficking offense within the meaning of 18 U.S.C. section 924(c) on an aiding or abetting theory, the Government is required to show that the defendant actively participated in the underlying crime with advance knowledge that a confederate would use or carry a gun during the crime's commission. Rosemond, 134 S. Ct. at 1243. Rosemond was not a constitutional decision, however, and the United States Supreme Court has not made the Rosemond holding retroactively applicable to cases on collateral review. See Gentile v. Fox, 2014 WL 3896065, at *8 (C.D. Cal. July 11, 2014), adopted 2014 WL 3896071 (C.D. Cal. Aug. 8, 2014) (Rosemond involved "merely an instructional error claim, and there is no indication that the rule declared therein regarding what it takes to aid and abet a §924(c) offense would apply retroactively on collateral review"); Kerr v. United States, 2016 WL 958202, at *3 E.D.N.C. Mar. 8, 2016) ("Rosemond involved a direct appeal from a criminal conviction, and . . . the Supreme Court gave no indication that its decision should be given retroactive application to cases on collateral review"); accord, Guardado-Mezen v. Copenhaver, 2014 WL 6885999, at *4 (E.D. Cal. Dec. 4, 2014); see also Ford v. United States of America, 2016 WL 3676615, at *4 (S.D. Ga. July 6, 2016) ("The Supreme Court has not declared Rosemond to be retroactive on collateral review. . . .") (footnote omitted); see generally United States v. Hopwood, 122 F.Supp.2d 1077, 1079-80 (D. Neb. 2000) ("the only pertinent inquiry [under similar language in 28 U.S.C. § 2255] is whether the Supreme Court has made its decision retroactively applicable to cases on collateral review"). Therefore, Rosemond does not entitle Petitioner to deferred accrual under section 2244(d)(1)(D).
Application of subsection D of 28 U.S.C. section 2244(d)(1) also does not furnish a date later than April 25, 1996, for commencement of the one year period of limitations. It fails to appear that Petitioner could not have discovered by April 25, 1996, through the exercise of "due diligence," the factual predicates for his present claims. Petitioner's reliance on cases such as Rosemond, Chiu and Banks is unavailing. The running of the statute of limitations does not await the issuance of judicial decisions that might help would-be petitioners recognize the legal significance of particular predicate facts. See Shannon v. Newland, 410 F.3d 1083, 1089 (9th Cir. 2005), cert. denied, 546 U.S. 1171 (2006) (intervening state court decision establishing abstract proposition of law arguably helpful to petitioner does not constitute a "factual predicate" under section 2244(d)(1)(D)); Avila v. Miller, 2015 WL 7722384, at 8 (C.D. Cal. Nov. 30, 2015) (Chiu did not entitle petitioner to deferred accrual under section 2244(d)(1)(D).
In sum, Petitioner is not entitled to delayed accrual. Absent tolling, therefore, the statute of limitations expired on April 24, 1997. See Patterson v. Stewart, 251 F.3d 1243 (9th Cir. 2001) (AEDPA statute of limitations expires on the anniversary date of the date the statute begins to run). As discussed below, no theory of tolling can rescue the present Petition from the bar of limitations.
Section 2244(d)(2) tolls the statute of limitations during the pendency of "a properly filed application for State post-conviction or other collateral review." The statute of limitations is not tolled between the conviction's finality and the filing of Petitioner's first state court habeas petition. See Porter v. Ollison, 620 F.3d at 958; Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000).
Petitioner did not file his first state court habeas petition until 2011, long after the statute expired. Petitioner's belatedly filed state court habeas petitions cannot revive or otherwise toll the statute. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003) (filing of state habeas petition "well after the AEDPA statute of limitations ended" does not affect the limitations bar); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 (2000) ("[a] state-court petition . . . that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled").5 Therefore, Petitioner is not entitled to statutory tolling.
AEDPA's statute of limitations is subject to equitable tolling "in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010) (citations omitted). "[A] `petitioner' is entitled to `equitable tolling' only if he shows `(1) that he has been pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); accord, Menominee Indian Tribe v. United States, 136 S.Ct. 750, 755-56 (2016); see also Lawrence v. Florida, 549 U.S. 327, 336 (2007). The threshold necessary to trigger equitable tolling "is very high, lest the exceptions swallow the rule." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 558 U.S. 897 (2009) (citations and internal quotations omitted). Petitioner bears the burden to show equitable tolling. See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009). Petitioner must show that the alleged "extraordinary circumstances" were the "cause of his untimeliness." Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006), cert. denied, 549 U.S. 1317 (2007) (brackets in original; quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)).
Petitioner asserts an entitlement to equitable tolling based on an alleged 2014 breakdown in the prison law library computerized legal access delivery system. Petitioner contends that an effort to upgrade the law library computers in January of 2014 caused the computers to crash, and that the library did not receive new computers until June of 2014 (Petition, ECF Dkt. No. 1, p. 5). Petitioner also asserts that case law updates on the new computers were "three months behind" (id.). According to Petitioner, these alleged problems delayed Petitioner's discovery of the Rosemond and Chiu cases until the end of October 2014 and delayed his discovery of the Banks case until December 15, 2015 (Petition, ECF Dkt. No. 1, p. 5; Traverse, p. 4 & Ex. Z).6 Petitioner also asserts that he had only limited library access to an "inadequately stocked" law library and that prison lockdowns allegedly hindered his access to the law library (Petition, ECF Dkt. No. 1, p. 6; Traverse, p. 1A).
Petitioner has not shown his allegedly belated discovery of Rosemond, Chiu and Banks was the cause of Petitioner's untimeliness in filing a federal petition. See Spitsyn v. Moore, 345 F.3d at 799. The statute of limitations expired long before the alleged problems with the law library computers. See Watson v. Woodford, 247 Fed. App'x 938, 940 (9th Cir. 2007) (delays allegedly attributable to impeded law library access "occurred after the statute of limitations already had run in 2003, and we need not consider whether they were extraordinary circumstances justifying equitable tolling"); Nguyen v. Hickman, 2001 WL 58969, at *2 (N.D. Cal., Jan. 11, 2001) ("equitable tolling depends on a specific showing by a petitioner that a particular problem prevented him from meeting the deadline for a particular amount of time").
To the extent Petitioner generally attributes any delay to assertedly limited law library access or prison lockdowns (see Traverse, p. 5), Petitioner has failed to show an entitlement to equitable tolling. See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (ordinary prison limitations on library access due to confinement in administrative segregation insufficient). Petitioner has not shown an entitlement to equitable tolling.
There exists an equitable exception to the AEDPA statute of limitations for "actual innocence." McQuiggin v. Perkins, 133 S.Ct. 1924 (2013). Although Petitioner does not invoke the actual innocence exception expressly, Petitioner does appear to argue that he is innocent of the murder under Rosemond and Chiu and innocent of his sentence under Banks.
"[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . [or] expiration of the statute of limitations." McQuiggin v. Perkins, 133 S. Ct. at 1928; see also Lee v. Lampert, 653 F.3d 929, 934-37 (9th Cir. 2011) (en banc). "[T]enable actual-innocence gateway pleas are rare." McQuiggin v. Perkins, 133 S. Ct. at 1928. The Court must apply the standards for gateway actual innocence claims set forth in Schlup v. Delo, 513 U.S. 298 (1995) ("Schlup"). See McQuiggin v. Perkins, 133 S. Ct. at 1928. "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror [or other trier of fact], acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id. (quoting Schlup, 513 U.S. at 329).
"`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998); Calderon v. Thompson, 523 U.S. 538, 559 (1998); Muth v. Fondren, 676 F.3d 815, 819, 822 (9th Cir.), cert. denied, 133 S.Ct. 292 (2012). In order to make a credible claim of actual innocence, a petitioner must "support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324; see also Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003), cert. denied, 541 U.S. 998 (2004) (holding that "habeas petitioners may pass Schlup's test by offering `newly presented' evidence of actual innocence"); Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) ("[A] claim of actual innocence must be based on reliable evidence not presented at trial."). "One way a petitioner can demonstrate actual innocence is to show in light of subsequent case law that he cannot, as a legal matter, have committed the alleged crime." Vosgien v. Persson, 742 F.3d 1131, 1134 (9th Cir. 2014).
Petitioner has not shown his alleged actual innocence under any of the cases upon which he relies. Rosemond involved the construction of federal statutory law and was not a constitutional decision. Indeed, the California Court of Appeal so held (see Respondent's Lodgment 7). Furthermore, unlike Rosemond, Petitioner's jury found Petitioner guilty of first degree murder on a felony murder theory, not a theory of direct aiding and abetting.7 Rosemond did not involve application of the felony murder rule, and Petitioner does not contend he was "innocent" of the two felonies (robbery and burglary) upon which his felony murder conviction was based. Any such contention would be manifestly untenable.
Chiu does not support Petitioner's claim of purported "actual innocence." As the California Court of Appeal ruled in denying Petitioner's habeas petition, Chiu is inapplicable to Petitioner's case because Petitioner's jury did not receive instructions on the "natural and probably consequences" theory of aiding and abetting (see Respondent's Lodgment 7). Moreover, the Chiu court expressly stated that its holding did not "affect or limit an aider and abettor's liability for first degree felony murder. . . ." Chiu, 59 Cal. 4th at 166; see Montanez v. Beard, 2015 WL 11197736, at *16 (S.D. Cal. Oct. 8, 2015), adopted as modified on another ground, 2016 WL 3854578 (C.D. Cal. July 15, 2016) (Chiu inapplicable where petitioner was convicted of first degree murder under the felony murder rule, not first degree premeditated murder).
With regard to Banks, even assuming arguendo that the "actual innocence" exception to the habeas statute of limitations applies to a noncapital sentence,8 Banks would not aid Petitioner. Banks held, as a matter of California law, that a defendant who was "no more than a getaway driver" for an armed robbery which resulted in a killing, and who was found guilty of felony murder special circumstance, was not eligible for a sentence of life without the possibility of parole because there was insufficient evidence to show that the defendant was a "major participant" in the felony and acted with "reckless indifference to human life" within the meaning of California Penal Code section 190.2(d).9 Banks, 61 Cal. 4th at 805-11. In Petitioner's case, the jury reasonably found Petitioner guilty of felony murder special circumstance based on evidence showing that Petitioner accompanied Estrada to Jaime's house, took a televison set out of the house, remained in the house while Estrada and Jaime fought, somehow stained his boxer shorts with Jaime's blood, brandished a rifle when apprehended by police and told Officer Carlson (profanely) "I'm the one you want." Petitioner has not offered any new, reliable evidence showing Petitioner is "actually innocent" of his sentence of life without the possibility of parole. See Schlup, 513 U.S. at 324.
For the foregoing reasons Petitioner has not met his burden to show his purported "actual innocence." The Petition is untimely.
RECOMMENDATION
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
