ORDER DENYING CERTIFICATE OF APPEALABILITY

LARRY ALAN BURNS, District Judge.

David Pringle, a prisoner represented by appointed counsel, filed his petition for writ of habeas corpus in this Court on October 9, 2007. On June 22, 2010, Magistrate Judge Louisa Porter issued her report and recommendation (the "R & R") recommending that Pringle's petition for habeas corpus be denied. After Pringle filed objections to the R & R, the Court on January 13, 2011 issued an order modifying the R & R, adopting it, and denying the writ.

Pringle now appeals, and petitions for a certificate of appealability (COA). He agrees his sole claim is brought under a theory of actual innocence under Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), but disagrees with the Court's holding that his petition was time-barred, that he did not demonstrate actual innocence, or that he could not show actual innocence even if given an evidentiary hearing.

Before the Court can issue a COA, Pringle "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further." Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir.2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)) (alterations omitted). Had the Court denied the petition purely on procedural grounds, it would be required to engage in a two-part inquiry, considering first whether jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and second whether jurists of reason would find it debatable that the Court was correct in its reasoning. Id. at 1026 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). Because the Court also relied on a substantive basis to deny the writ, it isn't required to undertake the two-part inquiry, but in the interests of completeness the Court will do so. Pringle must show the COA should issue, but doubt about whether the standard is met will be resolved in his favor. Lambright, 220 F.3d at 1025.

Merits of Herrera Claim

After the R & R was issued, the Ninth Circuit issued its decision in Lee v. Lampert, 610 F.3d 1125, 1128-31 (9th Cir.2010), holding a claim of actual innocence was not a gateway through which otherwise time-barred claims could be brought. In his objections to the R & R and in his notice of appeal, Pringle abandoned all claims except a stand-alone Herrera claim of actual innocence. In light of Lee, he specifically disclaimed any reliance on Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) and argued he was bringing a stand-alone claim of actual innocence based on what he described as newly-discovered evidence, which he believed was recognized in Herrera. (Obj. to R & R, 14:16-26.)

Assuming, arguendo, a claim of actual innocence in a non-capital case is possible under Herrera, the standard would be "extraordinarily high," and a petitioner must demonstrate that he is probably innocent. Carriger v. Stewart, 132 F.3d 463, 476-77 (9th Cir.1997) (en banc). The Supreme Court has also recently described this standard as requiring a showing that "evidence that could not have been obtained at the time of trial clearly establishes [the] petitioner's innocence." In re Davis, ___ U.S. ___, 130 S.Ct. 1, 1, 174 L.Ed.2d 614 (2009). A petitioner cannot succeed merely by casting doubt on the evidence that convicted him. Carriger at 466-67. In determining whether a petition successfully states an actual innocence claim, the Court looks at all evidence, including all new evidence. Majoy v. Roe, 296 F.3d 770, 776 (9th Cir.2002) (quoting Schlup, 513 U.S. at 327, 115 S.Ct. 851).

Pringle argues his Herrera claim is viable in spite of his multiple confessions, including one made in writing, voluntarily, at the suggestion of his own attorney, and under penalty of perjury. That confession named Eddie Smallwood as Pringle's accomplice in the rape, kidnaping, and robbery for which Pringle is now incarcerated. At the end of the typewritten confession, below his signature, Pringle apparently spontaneously hand-wrote a note, confirming his confession and apologizing to the other defendant that he hadn't made it sooner. The confession prompted an investigation which cleared the man who had been convicted as Pringle's accomplice, resulting in that man's release. But DNA evidence obtained during the investigation tended to incriminate both Pringle and Smallwood.1 Pringle later confirmed his written testimony to a deputy district attorney, who was conducting an investigation of the other defendant's guilt.

In his briefing, Pringle's counsel hinted, but never directly alleged, that Pringle was prepared to appear at a hearing and testify that his earlier confessions were lies. Although Pringle sought an opportunity to explain why he had made the confessions, he never said what those explanations would be, except to say that he signed the declaration "figuring he had nothing to lose." Even if this were an explanation for signing the confession, it doesn't explain why he hand-wrote the annotation after his signature, reaffirming the typed confession he had sworn to. Pringle also suggests, but studiously avoids alleging, he didn't confess to the deputy district attorney. Instead, he calls the attorney's affidavit "supposed evidence," claims he has never "had a chance to explain what was said," and argues "[t]hat can be explored at an evidentiary hearing." (Traverse, 3:9-10.)

The Court denied an evidentiary hearing. The Court agreed the eyewitness testimony identifying Pringle and the other defendant as the assailants was called into doubt later when the other defendant was cleared, but this doesn't tend to show Pringle himself was innocent. The only evidence in favor of Pringle's actual innocence was alibi testimony offered at trial and called into doubt by the prosecution's evidence. Even assuming a hearing were held and the Court found all the confessions were false, the DNA evidence and Pringle's prescient ability to identify Smallwood, whose DNA was consistent with the DNA of the other attacker,2 would prevent him from meeting Herrera's "extraordinarily high" standard of showing he was probably innocent. Nor would the alibi testimony be sufficient to "clearly establish[ ]" his innocence. See Davis, 130 S.Ct. at 1.

In his application for a COA, Pringle argues that "if a jurist found Mr. Pringle's explanation of his purported confessions credible, there would no longer be any affirmative, reliable evidence of his guilt.. . ." (Application for COA, 3:13-15.) This argument is both false and misleading. First, Pringle proffered no reasonable explanation for the first of the two confessions the Court principally relied on, and none at all for the second. If there were an explanation for the confessions, Pringle knows what it is. If there were an explanation, he could have alleged it in the briefing instead of cagily withholding it, dangling only the possibility that something might turn up at the hearing.3 Second, he didn't dispute making the confessions,4 but only sought to explain them; thus, they are actual confessions, not purported confessions. Third, as noted, there is other reliable evidence of Pringle's guilt.5

Timeliness

Under Ninth Circuit precedent, claims of actual innocence based on newly-discovered evidence are subject to AEDPA's one-year limitations period set forth in 28 U.S.C. § 2244(d)(1). Souliotes v. Evans, 622 F.3d 1173, 1177 (9th Cir.2010); see also id. at 1181-82 (dismissing all other claims, but remanding petitioner's actual innocence claim for an evidentiary hearing to determine the triggering date under § 2244(d)(1)(D)).

The Court agreed with the R & R that the petition was time-barred. The Court, agreeing with the state court but disagreeing with the R & R, found Pringle waited many years after he uncovered evidence, or could reasonably have done so, before he filed a petition. Second, both the Court and the Magistrate Judge found that after Pringle admittedly had all the evidence he now relies on in his possession, he allowed AEDPA's limitations period to expire before filing his petition in this Court.

Pringle's counsel mischaracterizes the record when he claims the Court in its order disagreed with Magistrate Judge Porter in her R & R that the petition was timely:

This is also false and misleading. The R & R specifically found the petition was untimely under AEDPA, unless saved by a Schlup "gateway" claim of actual innocence. See R & R, 6:19-7:22 ("Accordingly, these 482 days [between rounds of habeas review in state court] do not toll the statute of limitations, which renders the Petition untimely under the AEDPA.") The R & R then found the Schlup gateway didn't render the petition timely. And furthermore, Pringle has now abandoned his Schlup claim.

If Souliotes is followed, reasonable jurists would not find it debatable that Pringle's petition is time-barred. And thus far, no court has been inclined to allow otherwise time-barred stand-alone claims of actual innocence to be brought without regard to AEDPA's limitations period. Indeed, allowing such claims would effectively eliminate the limitations period without promoting justice. Actually innocent petitioners would have no reason to delay filing their petitions, but guilty would-be petitioners would have an incentive to sit on newly-discovered potentially exculpatory evidence while correspondingly inculpatory evidence is lost, memories fade, and witnesses disappear, before ambushing respondents with their stale claims. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 125, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (citation omitted). It seems doubtful any court would be willing to open the floodgates, particularly in non-capital cases.

That said, three justices of the Supreme Court, in a concurrence in Davis, recently questioned whether § 2244(d)(1)(D)'s requirements applied, or applied with equal stringency, in stand-alone actual innocence claims. 130 S.Ct. at 1 (arguing that a district court "may conclude that § 2254(d)(1) does not apply, or does not apply with the same rigidity, to an original habeas petition . . .") (Stephens, J., joined by Ginsburg, J. and Breyer, J., concurring).6 Although Davis is a capital case, the Ninth Circuit recently commented that, if a stand-alone claim of actual innocence exists, Herrera suggests capital and non-capital cases should receive "equal treatment." Osborne v. Dist. Attorney's Office, 521 F.3d 1118, 1140 (9th Cir.2008), rev'd on other grounds, ___ U.S. ___, 129 S.Ct. 2308, 2321, 174 L.Ed.2d 38 (2009).

The Court therefore concludes that, even though it is contrary to this Circuit's precedents, reasonable jurists might find it debatable whether an untimely petition asserting actual innocence is time-barred under AEDPA.

Other Substantive Bases for Denying the Herrera Claim

Although the Court didn't rely on other bases for denying this claim, they are appropriately considered now, to determine whether reasonable jurists would find Pringle's Herrera claim debatable.

The Supreme Court explained in Harrington that, subject only to the exceptions in §§ 2254(d)(1) and (d)(2), claims "adjudicated on the merits" in state court can't be relitigated on habeas review. 131 S.Ct. at 784-85. Pringle hasn't presented any evidence of what the California Supreme Court's decision was based on.7 It is Pringle's burden to show that the California Supreme Court lacked any reasonable basis for denying relief, id., and this is clearly not met here.

Pringle can't show that the state courts' denial of his sole remaining claim was contrary to "clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), because the Supreme Court has never held that a stand-alone claim of actual innocence is viable. Souliotes, 622 F.3d at 1182 n. 3.

He also doesn't show the state court's "decision was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See § 2254(d)(2). He doesn't even cite or provide the California Supreme Court's decision, and this is fatal to his petition, under Harrington.

And even assuming, arguendo, the California Supreme Court did nothing more than adopt the superior court's statement of facts, Pringle hasn't shown even those were unreasonable. In the 1980s when Pringle originally appealed his conviction, the appellate court reviewed the trial record in detail, noted implausibilities in Pringle's alibi evidence, and found it was not improper for the prosecutor to point out to the jury it had repeatedly changed when cast into doubt. The superior court conducting habeas review relied on that decision, noting Pringle was presenting evidence the appellate court had already considered, and found the new evidence didn't exonerate him. Because the alibi evidence is the only affirmative evidence of Pringle's innocence, the prosecution's rebuttal evidence is highly relevant. But in his federal petition, Pringle has distorted some of the rebuttal evidence,8 fabricated explanations for some of it,9 and ignored the rest altogether,10 concluding that the alibi was "verifiable." (Obj. to R & R, 15:16-17.) Even assuming the superior court's decision was wrong, Pringle can't show it was based on an unreasonable determination of the facts in light of the evidence presented to that court, and reasonable jurists wouldn't find this debatable.

Conclusion and Order

For these reasons, the Court finds Pringle has failed to "demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further." Lambright, 220 F.3d at 1025. The COA is DENIED.

IT IS SO ORDERED.