CAROLYN K. DELANEY, Magistrate Judge.
Petitioner, a California prisoner proceeding with counsel, is proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to have all matters in this action before a United States Magistrate Judge.
On July 10, 2008, petitioner was convicted in the Superior Court of Sacramento County of four counts of gross vehicular manslaughter while under the influence of alcohol, one count of causing bodily injury while driving under the influence, and one count of causing bodily injury while driving with .08 percent alcohol in his blood. A summary of the facts presented at trial may be found in the opinion of the California Court of Appeal concerning petitioner's direct appeal, attached to petitioner's original petition for writ of habeas corpus (ECF No. 1) at page 16.
Title 28 U.S.C. § 2244(d)(1) provides:
On January 31, 2011, petitioner filed a petition for review in the California Supreme Court of the California Court of Appeal's denial of petitioner's appeal of his convictions. The petition for review was denied on March 16, 2011. Resp't's Ex. C. Petitioner's conviction became final for purposes of § 2244(d)(1)(A) on June 14, 2011 when time expired for petitioner to seek a writ of certiorari with respect to the California Supreme Court's denial of petitioner's direct appeal request for review.
On March 12, 2012, petitioner filed a petition for writ of habeas corpus in the Superior Court of Sacramento County. Resp't's Ex. D at 1. Title 28 U.S.C. § 2244(d)(2) provides that "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. § 2244(d)(2). In the order denying the petition, however, the Superior Court found that the claims raised were untimely. Resp't's Ex. D at 4. That being the case, the petition was not "properly filed" for purposes of § 2244(d)(2) and does not provide a basis for tolling.
As indicated above, respondent concedes that petitioner's original habeas petition is timely. Therefore, if the new claims raised in the amended petition "relate back" to the original, the claims are timely. Rule 15(c)(1)(B) of the Federal Rules of Civil Procedure provides that a claim asserted for the first time in an amended pleading will relate back to the date of filing of the original pleading for statute of limitations purposes if the new claim "arose out of the conduct, transaction, or occurrence set out . . . in the original pleading." In the habeas corpus context, the "relation back" rule applies only when the new claims "arise from the same core facts as the timely filed claims, and not when the new claims depend on events separate in both time and type from the originally raised episodes."
In his original petition, petitioner asserted: 1) his right to due process was violated when the trial court excluded evidence that the person driving the car with which petitioner's car collided did not have a driver's license; and 2) petitioner's right to due process was violated when the trial court instructed jurors that they could conclude petitioner possessed a blood alcohol level in excess of .08 and was under the influence of alcohol at the time of the crash based solely on the fact that a blood test taken following the accident showed that petitioner did have a blood alcohol level of .08.
In Claim I, petitioner alleges his "actual innocence." As indicated above, the court declines to address whether petitioner's "actual innocence" claim is time-barred because the court rejects the claim on the merits below.
Petitioner again asserts the claims he raised in his original petition under the heading Claim II his amended petition, and, with respect to the claim regarding exclusion of evidence, he asserts that the exclusion of the evidence described violated his Sixth Amendment right to present a defense. The court finds that this Sixth Amendment claim relates back to the claims raised in the original petition. Therefore, respondent will be directed to file an answer with respect to all of the claims asserted under the heading Claim II in the amended petition.
As to Claim III, however, the court cannot conclude that it relates back. In this claim, petitioner asserts he was subjected to ineffective assistance of counsel in the following respects: 1) Counsel failed to call witnesses to support petitioner's testimony that he was not under the influence of alcohol at the time of the crash; and 2) Counsel failed to call witnesses who support petitioner's testimony that the person driving the car containing the victims was at fault for the crash.
As noted above, the claims from petitioner's original petition do not concern the performance of trial counsel and whether counsel was constitutionally ineffective for failing to call more witnesses to support petitioner's theories of defense. The core facts related to petitioner's ineffective assistance claims are not the same as petitioner's exclusion of evidence claim or his jury instruction claim. Therefore, Claim III does not relate back.
Claims IV and V concern petitioner's sentence, and have no relation to petitioner's original claims. Thus, neither claim relates back.
As indicated above, Claim I of petitioner's amended petition is titled "Actual Innocence," and is a claim which was not presented in the original petition. In Claim I, petitioner asserts that evidence he discovered around December 2011 establishes his innocence and entitles him to habeas relief.
In
Petitioner summarizes his newly discovered evidence/"actual innocence" claim as follows:
The evidence supporting petitioner's summary is provided by respondent in the form of deposition testimony from Able and Elidia Campos, which was apparently taken pursuant to a civil action filed against petitioner, and an affidavit from Mr. Soto.
As for Mr. and Mrs. Campos, whether Ms. Garnica actually served petitioner a single alcoholic drink is not material to petitioner's guilt or innocence. Even if the drink contained alcohol, it would be more damaging to petitioner since it would be more likely that petitioner ordered the drink, or at least knew that it contained alcohol, than petitioner not knowing it contained alcohol. Considering it is not disputed that petitioner had three martinis at lunch on the day of the crash, it would be entirely reasonable for jurors to conclude that petitioner was a fairly regular drinker who could tell when a drink had alcohol in it when the alcohol content was anything more than minimal.
With respect to the affidavit provided by Mr. Soto, petitioner asserts in his amended petition that he met Mr. Soto, a fellow inmate, in July 2013 at Mule Creek State Prison. Am. Pet. at 44. Petitioner alleges Mr. Soto approached petitioner and indicated that he had witnessed the accident, and that Mr. Soto ascribed blame for the accident to the driver of the other car. However, the court finds that there is nothing in the affidavit provided by Mr. Soto which causes the court to question the jury's verdict in this case. All of the information provided by Mr. Soto could have been suggested by petitioner or generated with some knowledge of the facts presented at trial.
For these reasons, petitioner has not shown that his new evidence demonstrates "actual innocence" under
In accordance with the above, IT IS HEREBY ORDERED that:
1. Respondent's November 19, 2013 motion to dismiss (ECF No. 15) is granted.
2. Claims I, III, IV and V in petitioner's amended petition for writ of habeas corpus are dismissed.
3. Respondent shall file his answer to Claim II within 60 days of this order. An answer shall be accompanied by transcripts and other documents not already on file which are relevant to the issues presented in the remaining claim.
4. Petitioner's traverse, if any, shall be filed and served within thirty days after service of the answer.
