GONZALO P. CURIEL, District Judge.
Petitioner Wardell Nelson Joiner, Jr. ("Joiner") is a state prisoner proceeding pro se. On November 16, 2016, Joiner filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, challenging his murder and torture convictions in San Diego County Superior Court case number SCN174120. (ECF No. 1.
Wardell Nelson Joiner, Jr. ("Joiner") and Vanessa Messner ("Messner" or "the victim") began dating when they were both enlisted personnel in the Marine Corps and deployed to Kuwait and Iraq during 2003. (Lodgment 8 at 2.) While stationed in Iraq, they became engaged to be married. Upon Messner's return to the United States in August or September 2003, she lived with Joiner in an apartment in Fallbrook. By February 2004, their relationship was ending. (Id.)
On February 11, 2004, Messner did not show up "for a 6:00 p.m. appointment to attend a party with some friends," including another marine she was dating. She had confirmed an hour earlier that she would meet them at a designated place. Despite phoning her repeatedly, Messner's friends received no response. (Id. at 3.)
Records and photographs from a Bank of America located in Oceanside show that Joiner used Messner's A.T.M. card to withdraw money from her credit union account at approximately 7:30 p.m. that night. Per a waitress at McCabe's Beach Club in Oceanside, Joiner was at the bar that night. She first saw him "after happy hour, so approximately anywhere from 6:00 to 7:30" p.m. He was there having drinks and watching television until between 10:00 and 10:45 p.m. He appeared depressed, stressed and preoccupied: he told the waitress he and his girlfriend were breaking up due to her seeing someone else and that during a fight earlier that night, she had stabbed him in the leg. When the waitress told Joiner to report the incident to the police and seek medical aid, he nodded but said nothing. (Id.)
After leaving McCabe's, Joiner went to his friend Marine Sergeant Ron Current's home and they played video games. Joiner told Current he fought with Messner at about 6:00 p.m. and she stabbed him because he was trying to take away her truck keys so she would not drive drunk. Current told Joiner to call the police, but Joiner refused. Eventually, Current phoned 911 and began to report the incident. The dispatcher asked to speak with Joiner, who only spoke with the dispatcher briefly due to his difficulty speaking. Current finished filing the report and was advised that a police officer would contact Joiner at Current's home. (Id. at 3-4.)
At approximately 11:30 p.m., Sheriff Deputy Daniel Perkins was told to contact Joiner. He telephoned Current's house and spoke with Joiner, who informed him that between 5:30 and 6:00 p.m., Messner had stabbed him with a steak knife when he stood in the doorway to stop her from leaving. She said she would spend the night elsewhere and went to get her clothes from inside the apartment. Joiner stated that he had left the apartment and he had left afterwards. (Id. at 4.) Notably, Joiner told Current that his fight with Messner had a different resolution: that he left her on the floor in the hallway of their apartment. (See Lodgment 1-3 at 102 [Current's testimony that Joiner said during the altercation "he pretty much pushed her down and left the premises"]; see also Lodgment 8 at 4 n.2; ECF No. 24 at 31.)
Perkins asked Joiner to come to the police station to document his wound, but Joiner said he could not do so that night. Perkins called Messner a few times but received no response. He also drove to her apartment and knocked on the door, but no one answered. He testified that the lights were not on in the apartment. (Lodgment 8 at 4.)
Messner did not show up to work on the morning of February 12, 2004. Messner's friend and Messner's platoon sergeant went to her apartment to check on her. Her truck was on the premises, the apartment door was locked, and no one answered their calls. They peered through a window and it appeared a bathroom light was on. They then called the police. (Id.)
At approximately 10:15 a.m., Deputy Sherriff Jeffrey Schmidt and other deputies responded to a call to check on Messner. They met her platoon sergeant there, knocked on the apartment doors and windows and received no response. They then obtained a pass key from the apartment manager to the unit. In the bathroom, they discovered Messner's body submerged in the water in the bathtub. "Her face was covered by a small, circular-shaped film of foam. Her hands were wrinkled, indicating she had been in the water for considerable time. There was no water on the floor, and no signs of a struggle." (Id. at 5.)
At approximately, 11:00 a.m., Detective Patrick Gardner was called to Messner's apartment to investigate her death. After obtaining a search warrant, investigation of the crime scene began at 6:49 p.m., during which the detectives found the home phone was working and there was no sign of forcible entry into the apartment. Further, a search of Joiner's car revealed several of Messner's identification cards, including her driver's license and Marine Corps ordnance card. (Id.)
As part of the investigation, Detective James Walker examined Joiner that same day. He did not find a "stab wound," but rather a "very tiny, just a little scrape" on Joiner's left thigh. There were no defensive marks on Joiner's hands or body, which was contrary to the detective's expectation given Joiner's claim that Messner had stabbed him. Detective Walker testified that Joiner had on his person the following: (1) the keys to Messner's truck; (2) Messner's A.T.M card; and (3) $43.86 in cash. (Id. at 5.)
At approximately, 1:00 p.m. that day, Dr. Glenn Wagner, Chief Medical Examiner for San Diego County, was called regarding Messner's death. He arrived at the crime scene at 9:30 p.m. Upon removing Messner's body from the tub, Dr. Wagner noticed that although her body was in rigor mortis, there was great mobility in her neck which was broken. He found bruised on her neck consistent with strangulation and wringing of the neck. Additionally, he found bruising on her wrist, biceps, right hip, as well as lacerations on her lips. (Id. at 6.)
Dr. Wagner testified Messner's broken neck would have produced instant paralysis but not death: "In the absence of anything else, we would fuse that area, and eventually sensation would return to the spinal cord. This injury itself isn't a fatal injury." (Id. at 6.)
Dr. Wagner could not determine whether Messner was awake or conscious when placed in the tub. He testified that Messner died by drowning, as evidenced by the pulmonary edema or foam in the bathtub, which indicated she was still alive when placed in the water. Per Dr. Wagner's testimony, death by drowning involves "a period of panic and gasping, which can be quite long, a minute and a half or longer, followed by an area of quietness and then convulsions followed by death. In most cases . . . unconsciousness takes anywhere from three to ten minutes, and death occurs in 13 minutes." (Id.)
Dr. Wagner testified that Messner's death "most likely, occurred either late in the evening of [February 11] or possibly in the morning hours of the 12th of February." He added, "It could certainly be three or four hours on either side" of that estimate. (Id.)
On April 22, 2005, a jury convicted Joiner of first degree murder and found true the special circumstance of intentional infliction of torture pursuant to California Penal Code §§ 187(a), 190.2(a)(18). (Lodgment 8 at 1-2.) The jury deliberated for less than two hours before reaching their verdict. (See Lodgment 3 at 271-72.) Joiner was sentenced to a term of life without the possibility of parole and had a parole revocation restitution fine under section 1202.45 imposed. (Id. at 244-45.) He brought a motion for a new trial on September 30, 2005 based on alleged prosecutorial misconduct and sought dismissal of the special allegation because of insufficient evidence. (Lodgment 8 at 2; Lodgment 3 at 194-202.) The court denied the motion ruling that there was no misconduct and the special circumstance was supported by sufficient evidence. (Lodgment 8 at 2.)
On June 22, 2006, Joiner appealed his conviction contending: (1) the prosecutor committed prosecutorial misconduct during closing argument; (2) the permissive inference in CALJIC No. 2.50.02 violated Joiner's due process; (3) the special circumstance finding of torture should be reversed based on trial counsel's failure to object to a hearsay statement during a videotaped experiment simulating the circumstances of the murder; and (4) the trial court erred in ordering a parole revocation restitution fine per section 1202.45. (Lodgment 5; Lodgment 8 at 2, 14-23.) The California Court of Appeal affirmed the judgment but remanded the matter to the trial court with instruction to strike the parole revocation restitution fine as Joiner is ineligible for parole. (Lodgment 8 at 23-24.)
In its discussion of Joiner's prosecutorial misconduct claim, the California Court of Appeal held that there was overwhelming evidence of his guilt:
(Lodgment 8 at 16-17.) Joiner's petition for review was filed with the California Supreme Court on January 18, 2007 and denied on February 21, 2007. (Lodgments 9-10.)
From February 6, 2008 to April 1, 2016, Joiner filed nine habeas petitions in the state trial court, five habeas petitions in the California Court of Appeal, and one habeas petition in the California Supreme Court. (See Lodgments 11-37.) However, he did not file a federal petition until filing the instant Petition on November 9, 2016.
Joiner filed his first habeas petition in the trial court on February 6, 2008 in which he claimed infective assistance of his trial counsel due to counsel's failure to locate and interview an alibi witness and failure to call an expert witness regarding the victim's time of death. (Lodgment 11.) The Superior Court denied the petition on July 7, 2008. (Lodgment 12.)
Joiner filed his first habeas petition in the California Court of Appeal on May 31, 2009 in which he claimed that the medical examiner miscalculated the victim's time of death. (Lodgment 13.) This petition was denied without prejudice so that Joiner could raise this claim in the first instance before the trial court. (Lodgment 14.)
Joiner filed his second habeas petition in the trial court on February 5, 2010. He asserted that a miscarriage of justice had occurred and claimed his actual innocence based on evidence regarding the victim's time of death. (Lodgment 15 [relying on victim's autopsy report and statement of Michael Focke].) On April 9, 2010, the court denied this second habeas petition as the certificate noting the victim's time of death was not "newly discovered evidence" and did not point "unerringly towards innocence." (Lodgment 16 at 2.) The trial court noted that Joiner's efforts to rely on the victim's death certificate and autopsy report which state her official time of death as February 12, 2004 at 10:05 "are baseless" as it is clear that this date and time refer to when the victim's body was found. (Id. at 3.) Thus, Joiner's claims had no merit. (Id.)
Joiner filed his second habeas petition in the California Court of Appeal on April 22, 2010 again claiming actual innocence based on evidence regarding the victim's time of death. (Lodgment 17.) In denying the petition on June 9, 2010, the court found there was no "new exculpatory evidence and the issue of sufficiency of the evidence is not cognizable on habeas corpus. . . . The evidence showed [the victim's] body was found at approximately 10:00 a.m. on February 12, 2004, and was in rigor mortis. The logical conclusion is Dr. Wagner noted the date and time the body was found in his autopsy report and the Certificate of Death." (Lodgment at 18 at 2.) Further, the Court referred to its prior finding on direct appeal that "there was overwhelming evidence of Joiner's guilt." (Id. at 1-2.)
On June 21, 2010, Joiner filed a third habeas petition in the trial court in which he raised the same claims he had raised in his previous petitions to the trial court. (Lodgment 19.) It was denied on July 9, 2010. (Lodgment 20.)
Joiner filed a fourth habeas petition in the trial court on January 18, 2011
Joiner then filed his sixth habeas petition in trial court on August 8, 2011. (Lodgment 23.) The court denied the petition as successive on September 8, 2011.
On October 30, 2011, Joiner filed his third habeas petition in the California Court of Appeal again claiming actual innocence based on a January 8, 2011 investigation.
Joiner then filed his seventh habeas petition in the trial court;
On April 17, 2012,
On July 9, 2013, Joiner filed his eighth habeas petition in the trial court, which was denied on November 14, 2013. (Lodgments 30-31.)
On December 1, 2014,
Joiner then filed his fifth habeas petition in the California Court of Appeal on October 1, 2015.
Finally, Joiner filed a habeas petition on April 1, 2016 in the California Supreme Court raising the same claims as his prior habeas petition in the California Court of Appeal. (Lodgment 36.) In this petition, he included a claim alleging that constitutional error deprived the jury of critical evidence that would have established his innocence regarding the victim's time of death and invoked the "new report" of Cindy Balch, RN. (Id. at 46-48 [referenced as attached Exhibit B].) The petition was summarily denied on June 29, 2016. (Lodgment 37.)
On November 9, 2016, Joiner filed the instant federal habeas Petition.
The district judge must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b). The district court need not review de novo those portions of a Report to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). On February 28, 2018, Joiner filed objections to the Report. (ECF No. 24.) Therefore, the Court makes a de novo review of the portions of the Report to which Joiner objects.
Because Joiner's Petition was filed after April 24, 1996, it is subject to the AEDPA. Patterson v. Stewart, 215 F.3d 1243, 1245 (9th Cir. 2001). The AEDPA provides a one-year statute of limitations for filing a habeas corpus petition in federal court. Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005) (citing 28 U.S.C. § 2244(d)(1)). The enactment of AEDPA amended 28 U.S.C. § 2244 by adding the following relevant section:
28 U.S.C. § 2244(d)(1)(A).
Pursuant to AEDPA, Joiner had one year from the date his state conviction became final to file his Petition in federal court. Calderon v. U.S. District Court, 128 F.3d 1283, 1286-87 (9th Cir. 1997), as amended on denial of rhg. and rhg. en banc, cert. denied, 522 U.S. 1099 (1998), overruled on other grounds by Calderon v. U.S. District Court, 163 F.3d 530 (9th Cir. 1999), cert. denied, 523 U.S. 1063 (1999). In California, a petitioner's conviction becomes final ninety days after the California Supreme Court denies a petition for direct review. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). The one-year statute of limitations under AEDPA begins to run the day after the conviction becomes final. See 28 U.S.C. § 2244(d)(1); Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002).
As the Magistrate Judge explains, Joiner's conviction became final on May 22, 2007, and his one-year statute of limitations began to run on May 23, 2007.
However, the Court recognizes three exceptions that may permit review of a petition after the one-year limitation has expired: (1) statutory tolling under 28 U.S.C. § 2244(d)(2); (2) equitable tolling, see Holland v. Florida, 560 U.S. 631, 645 (2010); and, in rare and extraordinary circumstances, (3) a plea of actual innocence, see McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).
The AEDPA tolls the one-year statute of limitations period for the amount of time a "properly filed application for State post-conviction or other collateral review" is pending in state court. 28 U.S.C. § 2244(d)(2); Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir. 1999), overruled on other grounds by Carey v. Saffold, 536 U.S. 214 (2002). A petitioner "bears the burden of proving that the statute of limitations was tolled." Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010). A state prisoner who unreasonably delays in filing a state habeas petition is not entitled to statutory tolling because the petition is not considered "pending" or "properly filed" within the meaning of section 2244(d)(2). Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir. 2012) (quoting Carey, 536 U.S. 214).
Joiner concedes that he is not entitled to have his Petition considered timely based on statutory tolling.
The one-year statute of limitations under the ADEPA may be subject to equitable tolling in appropriate cases. Holland, 560 U.S. at 645. To be entitled to equitable tolling, a habeas petitioner has the burden to establish two elements: (1) "he has been pursuing his rights diligently," and (2) "some extraordinary circumstance stood in his way." Id. at 649 (citing Pace, 545 U.S. at 418).
In his Opposition, Joiner also concedes that he is not entitled to equitable tolling.
The Court has examined the legal authority pertaining to the AEDPA's actual innocence exception and recites the framework provided in the Report. (See ECF No. 22 at 16-17.)
In rare and extraordinary circumstances, a plea of actual innocence can serve as a gateway through which a petitioner may pass to overcome the one-year statute of limitations applicable to federal habeas petitions under AEDPA. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); see also Lee v. Lampert, 653 F.3d 929, 934-37 (9th Cir. 2011) (en banc). To show actual innocence, the petitioner must meet the threshold requirement set forth in Schlup v. Delo, 513 U.S. 298 (1995). This requires a petitioner to "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. Such evidence need not be newly discovered, but it must be "newly presented", meaning that it was not before the trial court. See Griffin v. Johnson, 350 F.3d 956, 961-63 (9th Cir. 2003).
Further, a petitioner must "persuade[ ] 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." McQuiggin, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 329 [noting the miscarriage of justice exception only applies to cases in which new evidence shows "it is more likely than not that no reasonable juror would have convicted the petitioner"]); see also House v. Bell, 547 U.S. 518, 538 (2006) (emphasizing that the Schlup standard is demanding and seldom met). This exacting standard "permits review only in the extraordinary case, but it does not require absolute certainty about the petitioner's guilt or innocence." Larsen v. Soto, 742 F.3d 1083, 1095 (9th Cir. 2013) (quoting Schlup, 513 U.S. at 321). Critically, "actual innocence," for purposes of Schlup, "means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).
A petitioner's new evidence must be "so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error." Schlup, 513 U.S. at 316. The habeas court considers all evidence, both old and new, incriminating and exculpatory, admissible at trial or not, and based, "[o]n this complete record, the court makes a probabilistic determination about what reasonable, properly instructed jurors would do." Lee, 653 F.3d at 938 (internal quotations omitted). "Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing" required by Schlup. McQuiggin, 569 U.S. at 399; see Schlup, 513 U.S. at 322 ("[a] court may consider how the timing of the submission and the likely credibility of [a petitioner's] affiants bear on the probable reliability of . . . evidence [of actual innocence].")
Precedent holding that a petitioner has satisfied the Schlup standard has "typically involved dramatic new evidence of innocence," such as DNA evidence or a prosecution's chief witness's subsequent open court confession that he was the perpetrator of the murder for which the petitioner had been convicted. Larsen, 742 F.3d at 1096. In contrast, access to the Schlup gateway has been denied where "a petitioner's evidence was merely cumulative or speculative or was insufficient to overcome otherwise convincing proof of guilt." Id. (citing as examples Lee, 653 F.3d at 943-46 and Sistrunk v. Armenakis, 292 F.3d 669, 675-77 (9th Cir. 2002) (en banc)).
Joiner argued that "the central forensic proof connecting [him] to the crime has been called into question" by the following newly presented evidence:
(1) the victim's autopsy report completed by Dr. Wagner listing the victim's time of death as February 12, 2004 at 10:05 a.m. (ECF No. 17 at 8 (citing ECF No. 1, Ex. A);)
(2) a report by Nurse Cindy Balch dated September 9, 2014, over ten years after the victim's death, that questions the victim's time of death, as well as various other aspects of the evidence in this case (id. at 9 (citing ECF No. 1, Ex. B);)
(3) an affidavit of a supposedly exculpatory witness, Michael Focke, stating he spoke with the victim on February 11, 2004 between 6:00 p.m. and 7:00 p.m. (id. at 9-10 (citing ECF No. 1, Ex. E);)
(4) a report from a private investigator who timed the drive between the Fallbrook apartment where the victim was found and McCabe's bar in Oceanside on December 1, 2010 (id. at 10 (see ECF No. 1, Ex. G);)
(5) a February 12, 2004 investigative police report stating that a window in the apartment bedroom was not locked (id. at 10 (citing ECF No. 1, Ex. K);) and
(6) an affidavit from a friend of Joiner stating he was willing to testify that during an incident of prior domestic violence between Joiner and the victim discussed at trial, he saw the victim attempt to hit Joiner (id. at 10-11 (citing ECF No. 1, Ex. I).) (See ECF No. 22 at 18.)
Joiner uses this evidence to support his arguments that (a) the victim was alive after he left the apartment; (b) testimony at trial regarding the victim's time of death was unreliable and biased based on the time of death noted on the death certificate and autopsy report; (c) there was someone else in the apartment based on the fact that a light was on in the apartment; and (d) the evidence against Joiner at trial was weak as there was no DNA evidence or eyewitness accounts linking him to the crime. (Id. (citing ECF No. 1 at 11-12.) The Magistrate Judge addressed each of these arguments and Joiner's accompanying new evidence.
The Magistrate Judge explained that "the crux of Joiner's alibi defense was based on a challenge to the time of death proffered by Dr. Wagner." (ECF No. 22 at 20 (citing Lodgment 1 at 657-66 (defense counsel arguing in his closing argument that based on Dr. Wagner's testimony as to the science of rigor mortis and the victim's estimated time of death, Joiner could not have been the person who killed the victim.) Specifically, the Magistrate Judge discounted Dr. Wagner's autopsy report and statements provided in Nurse Balch's report challenging the victim's time of death as evidence that was presented to the jury by Dr. Wagner's trial testimony and defense counsel's closing argument. (ECF No. 22 at 20-21.) ("the newly presented evidence regarding the victim's time of death, was information and argument the jury had before it and rejected in reaching Joiner's guilty verdict in after less than two hours of deliberation.")
Further, the Magistrate Judge found that Joiner had not established his actual innocence based on the inference that, because the bedroom window was unlocked, someone else was in the apartment who may have killed Messner. (See ECF No. 22 at 21.) The Magistrate Judge explains, "This is the type of merely speculative evidence that is insufficient to overcome the otherwise overwhelming proof of guilt in this case." (Id. (citing Larsen, 742 F.3d at 1096).)
The Magistrate Judge also addressed the discounted the relevance of Michael Focke's testimony that he remembered speaking with the victim between 6:00 p.m. and 7:00 p.m. in light of the strength of other evidence presented at trial. (ECF No. 22 at 21-22.) The Magistrate Judge opined, "While Focke's testimony may call into question the prosecution's timeline for the night of February 11, 2004, other testimony was presented at trial that would contradict his statement." (Id. at 22.) For example, other witnesses who had plans to meet Messner attempted to call her around 5:00 p.m. and, when Messner failed to meet them at 6:00 p.m. as planned, they continued to call multiple times thereafter. (Id.)
The Magistrate Judge found that the newly estimated drive times provided by Joiner's investigator did not foreclose the timeline presented at trial. (Id.) "In fact, they align with the estimated travel time provided by the prosecution during closing argument." (Id. (citing Lodgment 1 at 626-27 ("it takes no less than maybe a half hour from Fallbrook to downtown Oceanside," where Joiner withdrew money from Messner's credit union account at 7:30 p.m.). Also, "[w]itnesses placed Joiner at specific locations during the evening of February 11, 2004, but they did not account for the entire time period covered by Dr. Wagner's estimated time of death testimony." (ECF No. 22 at 22.) Thus, the Magistrate Judge opined that Joiner's evidence "falls short of being the type of evidence that would permit Joiner to pass through the Schlup gateway." (ECF No. 22 at 22.)
Moreover, the Magistrate Judge opines, "the fact that one of Joiner's friends was willing to testify that during an incident of prior domestic violence between Joiner and Messner discussed at trial, the victim tried to hit Joiner, does not prove that Joiner is actually innocent." (Id. at 22-23 (citing ECF No. 1 at 110-12.) The Magistrate Judge notes, "Other witnesses testified as to the nature of Joiner's relationship with Messner including past instances of possessive and violent behavior.
Finally, the Magistrate Judge observed that there was substantial evidence pointing to his guilt including inter alia that he admitted to multiple individuals that he fought with the victim at 6:00 p.m. the day she was killed, he provided conflicting reports regarding how the fight ended, he told authorities conflicting stories that he had gone straight to Current's house after the fight when he actually went to McCabe's bar, and most pertinently that Joiner admitted to strangling the victim and placing her in a bathtub. (ECF No. 22 at 23-24.) Joiner "admitted that he put both hands around [the victim's] neck area and threw her down so her head hit a wall. He finally admitted that he had put the victim in the bathtub, after she was laying motionless on the floor, pulling the stop, filling the tub with water, and then leaving. He claimed that he left the victim's head above water and only filled the tub less than half full . . . ." (ECF No. 22 at 25) (quoting Lodgment 3 at 16-19, 46-47).
After reviewing the trial record and Joiner's newly presented evidence, the Magistrate Judge concluded:
(ECF No. 22 at 17-18, 26.)
Joiner asserts the following specific objections to the Magistrate Judge's analysis of his actual innocence claim: (1) the Report relies on an erroneous state court adjudication of Joiner's claim, (2) the Report fails to properly assess the likely impact of the new evidence on reasonable jurors under Schlup, (3) the Report's conclusion that Joiner had not satisfied the "actual innocence" gateway is based in part on false evidence that constituted a "fraud on the court," and (4) the Report relied on factual disputes and credibility determinations that were made without the benefit of an evidentiary hearing. (See ECF No. 24 at 2.) This Court analyzes each objection in turn.
Joiner argues that the Report relies on an erroneous state court adjudication of his claims. (ECF No. 24 at 9.) Specifically, Joiner contends that "the innocence claim presented to the trial court was based on a freestanding innocence claim" under Herrera, while the instant petition is subject to a lower burden imposed by Schlup. (See id.)
However, Joiner's argument has no grounding in the record. Indeed, the actual innocence argument Joiner presented to the state superior court and court of appeals was predicated on Schlup and its progeny. For example, in Joiner's petition for writ of habeas corpus presented to the San Diego County Superior Court, he argued, "The weight of the newly discovered evidence, in conjunction with the evidence introduced at trial proves that Joiner has met the Schlup gateway standard . . . ." (Lodgment 32 at 68.) Also, in Joiner's petition for writ of habeas corpus filed with the California Court of Appeal, he states, "The newly discovered/presented evidence is proof of petitioner's actual innocence. In McQuiggin v. Perkins . . . the U.S. Supreme Court held that actual innocence, permitted petitioners to overcome procedural barriers to relief the same as under the fundamental miscarriage of justice exception, which applies where a constitutional violation has probably resulted in the conviction of one who is actually innocence." (Lodgment 34 at 16 (internal quotations omitted);) See McQuiggin v. Perkins, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327) ("To invoke the miscarriage of justice exception to AEDPA's statute of limitations, we repeat, a petitioner `must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.'").
As the Magistrate Judge explains, the San Diego Superior Court found that "even assuming Joiner's evidence is new, it still does not undermine the jury's guilty verdict." (ECF No. 22 at 19.) Further, "the California Court of Appeal rebutted Joiner's claim of actual innocence based on the same alleged inaccuracies in Dr. Wagner's autopsy report regarding the victim's time of death that he relies on now." (Id.) Nonetheless, the Magistrate Judge proceeded with his own independent review of the record and provided a thorough analysis of Joiner's proclaimed actual innocence. (See ECF No. 22 at 17-26.) Therefore, this Court finds no merit to Joiner's argument that the Magistrate Judge's improperly reviewed and relied upon any erroneous state court adjudications.
Joiner argues that the Report failed to properly assess the likely impact of the new evidence on a reasonable juror under Schlup. (ECF No. 24 at 10.) Specifically, Joiner asserts that the Magistrate Judge erred in finding that the new evidence presented does not establish his innocence "[because] he is not required to show that he is "actually innocent" of the crime he was convicted of." (Id.) Instead, Joiner explains, "the Schlup gateway standard is satisfied by the new evidence that Messner was alive after he left the apartment and that her death occurred on February 12, 2004, which undermines confidence in the outcome of the trial that was predicated on evidence that Messner died February 11, 2004." (Id. (internal citations omitted).)
The Court agrees with Joiner insofar as Schlup "does not require absolute certainty about the petitioner's . . . [actual] innocence." Larsen, 742 F.3d at 1095 (quoting Schlup, 513 U.S. at 321). Instead, Schlup requires a petitioner to "persuade 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." McQuiggin, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 329). The petitioner's burden is to demonstrate that "it is more likely than not that no reasonable juror would have convicted him." Schlup, 513 U.S. at 329. This burden is demanding and very seldom met. See House, 547 U.S. at 538.
Here, Joiner's "new evidence" attempts to raises doubt about the accuracy of Messner's time of death as presented at trial. (See ECF No. 24 at 10-15.) In his Objections, Joiner contends that the prosecutor told jurors that Messner died on February 11, 2004 at 6:00 p.m. (ECF No. 24 at 10.) However, this assertion is inconsistent with Joiner's own Petition, which offers a quote from the prosecutor's closing argument suggesting Messner's death may have occurred between 6:30 p.m. and 7:30 p.m. (See ECF No. 1 at 42.)
Joiner vehemently contends that Messner's death occurred on February 12, 2004 between 6:00 a.m. and 10:05 a.m.
Yet, for the purpose of a Schlup analysis, this Court has a more expansive perspective from which to review Joiner's claim of actual innocence. See Lee, 653 F.3d at 938. As Joiner points out, it is "this Court's role to consider all evidence and make a `probabilistic determination about what reasonable, properly instructed jurors would do [on a] complete record.'" (ECF No. 24 at 15-16;) see id. In doing so, the Court may consider both admissible and inadmissible evidence. Lee, 653 F.3d 938. However, this holistic review only cuts further against Joiner's claim to innocence.
During an interview after being advised of his Miranda rights, Joiner "admitted that he put both hands around [the victim's] neck area and threw her down so her head hit a wall. He finally admitted that he had put the victim in the bathtub, after she was lying motionless on the floor, pulling the stop filling the tub with water, and then leaving [the apartment]. He claimed that he left the victim's head above water and only filled the tub less than half full . . . ." (Lodgment 3 at 52-53.)
Joiner challenges the Magistrate Judge's failure to mention "the fact that, prior to giving his statement to the authorities . . ., [Joiner] was informed by Ronald Current that Messner had died."
After a thorough review of these transcripts, the Court recognizes that Current had informed Joiner that Messner was dead prior to his interview with detectives. However, the Court also observes that Joiner did not simply say "anything" to the detectives — he provided them with a detailed account of Messner's murder that bore exacting consistency with Dr. Wagner's autopsy findings,
The Court finds no indication that the detectives suggested any of these facts to Joiner. Joiner made exacting statements about the placement of Messner's body in the bathtub. The detectives never made mention of the bathtub until after Joiner stated "I put her in the bathtub." (ECF No. 24 at 61.) Also, detectives made no reference to Messner's neck injuries until after Joiner demonstrated the manner in which he grabbed Messner during their altercation and said, "I grabbed her toward her neck." (Id. at 52.) Hence, the Court finds no suggestive influence by detectives as Joiner contends in his Objections. (See id. at 8.)
Joiner also argues that Michael Focke's testimony "casts doubt on [his] conviction that was based on testimony that Messner died February 11, 2004." (Id. at 14-15.) In his affidavit, Focke states that he spoke with Messner on February 11, 2004 between 6:00 p.m. and 7:00 p.m. (ECF No. 17 at 9-10 (citing ECF No. 1 at 97).) In his Objections, Joiner repeatedly emphasizes the notion that "Focke talked to Messner as late as 7:00 p.m. on February 11, 2004." (ECF No. 24 at 15, 17, 19 (emphasis added).) He contends, "There is no argument that can be made to account for the simple fact that Michael Focke talked to Messner as late as 7:00 p.m."
The Magistrate Judge suggested that, in light of Joiner's confession, it would be impossible for Joiner to provide any new evidence that would satisfy his burden. (See ECF No. 24 at 15, objecting to ECF No. 22 at 25.) While it may not be a complete impossibility as the Magistrate Judge suggests, this Court finds that Joiner certainly has not provided adequate new evidence in the instant Petition to overcome these detailed inculpatory statements. Hence, Joiner has failed to demonstrate that, on a complete record and in light of his new evidence, "it is more likely than not that no reasonable juror would have convicted him." See Schlup, 513 U.S. at 329.
Next, Joiner objects to the Magistrate Judge's alleged reliance on false evidence in reaching the conclusion that Joiner had not satisfied the Schlup standard.
In order for the court to conclude that a non-harmless constitutional error has occurred, the petitioner must provide it 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. A petitioner's new evidence must be "so strong that a court cannot have confidence in the outcome of the trial . . . ." Schlup, 513 U.S. at 316. A conviction based on false evidence may give rise to a non-harmless constitutional error. See Napue v. Illinois, 360 U.S. 264, 269 (1959) ("a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction").
Joiner alleges that the false evidence offered at his trial was Dr. Wagner's "lie," stating that Messner died on February 11, 2004. (ECF No. 24 at 18.) Joiner argues that "Dr. Wagner gave the jury the impression that, upon completing the autopsy, the reliable principles and methodologies used to determine the time of death lead him to the conclusion that Messner died on February 11th." (Id. at 18-19.) Joiner further contends that "[t]he prosecutor . . . consistently misrepresented the truth when he told the jury that Messner's death occurred at 6:00 p.m. on February 11, 2004." (ECF No. 24 at 20.) However, it is Joiner who fundamentally misrepresents the truth about Dr. Wagner's trial testimony. Again, Dr. Wagner testified that Messner's death "most likely, occurred either late in the evening of [February 11] or possibly in the morning hours of the 12th of February," adding "It could certainly be three or four hours on either side" of that estimate. (Lodgment 8 at 6 (emphasis added).) The Court reiterates that the new evidence offered by Joiner only further supports the credibility of Dr. Wagner's testimony. Again, Cindy Balch's report, the Autopsy Report, and the Death Certificate all provide an estimated time of death within the range Dr. Wagner testified to at trial — the morning of February 12, 2004. Therefore, the Court concludes that Joiner's conviction was not predicated on false evidence.
Joiner argues that the prosecutor's statements, coupled with Dr. Wagner's alleged false testimony constitute a "fraud on the court."
Joiner once again contends that "the affidavit from Michael Focke proves that Messner was alive as late as 7:00 p.m., when the trial record established that the petitioner was 26 miles away at McCabe's bar in Oceanside." (ECF No. 24 at 19 (internal citations omitted) (emphasis added).) The Court reiterates that Focke's affidavit indicates he may have spoken to Messner as early as 6:00 p.m. (See ECF No. 1 at 97.) At trial, Joiner was placed at McCabe's bar between 6:00 p.m. and 7:30 p.m.
In sum, this Court has concluded that Joiner's trial was free from non-harmless constitutional error, it rejects Joiner's claim that he was convicted on false evidence, and it finds no showing of a fraud on the court.
Joiner objects to the Magistrate Judge's findings that were made without holding an evidentiary hearing. (ECF No. 24 at 22.)
As the Magistrate Judge explains, "[a]n evidentiary hearing may be conducted for an actual innocence claim when it `would produce evidence more reliable or more probative.'" (ECF No. 22 at 26 (quoting Griffin, 350 F.3d at 966).) "However, an evidentiary hearing is unnecessary if the petitioner `has failed to show what an evidentiary hearing might reveal of material import to his assertion of actual innocence.'" Id. Contrary to Joiner's argument that "questions of credibility are only resolved through a hearing," (ECF No. 24 at 23,) "credibility may be determined without an evidentiary hearing where it is possible to conclusively decide the credibility question based on documentary testimony and evidence in the record." Smith v. McCormick, 914 F.2d 1153, 1170 (9th Cir. 1990); see also Watts v. U.S., 841 F.2d 275, 277 (9th Cir. 1988) (asserting that although issues of credibility are uncommonly resolved on the basis of affidavits, "we find that this is one of those cases in which an issue of credibility may be conclusively decided on the merits on the basis of documentary testimony and evidence in the record [which undermined petitioner's claim].").
Joiner argues that an evidentiary hearing is necessary to make a credibility determination about Dr. Wagner "because [he] has not been called upon to testify under oath why his testimony changed from the Autopsy Report and Death Certificate." (ECF No. 24 at 23.) However, as this Court has explained, Dr. Wagner's testimony is not inconsistent with the Autopsy Report and Death Certificate.
Pursuant to Rule 11 of the Rules following 28 U.S.C. section 2254, which was amended effective December 1, 2009, a district court now "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A state prisoner may not appeal the denial of a section 2254 habeas petition unless he obtains a certificate of appealability from a district or circuit judge. 28 U.S.C. § 2253(c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir.1997) (holding that district courts retain authority to issue certificates of appealability under AEDPA). A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this threshold showing, petitioner must show that: (1) the issues are debatable among jurists of reason, (2) that a court could resolve the issues in a different manner, or (3) that the questions are adequate to deserve encouragement to proceed further. Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir.2000) (citing Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).
As dismissal of this petition constitutes a "final order adverse to the applicant," the Court must decide whether to grant petitioner a certificate of appealability. Based on this Court's review of the Magistrate Judge's Report, petitioner's objections thereto, and the entire record in this matter, this Court finds that no issues presented are debatable among jurists of reason, a court could not resolve the issues in a different manner, and that the questions presented are not adequate to deserve encouragement to proceed further. Accordingly, the Court will
Based on the foregoing reasons, the Court finds that Joiner's Petition for Writ of Habeas Corpus is time-barred pursuant to the AEDPA. Further, the Court finds no applicable exception—including actual innocence—that would toll the statute and permit review of Joiner's Petition on the merits despite its untimeliness. Therefore, the Court
