MIRANDA M. DU, District Judge.
This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 comes before the Court on respondents' motion to dismiss on several grounds, including timeliness. (ECF No. 16.) Petitioner John Rosky ("Rosky") has opposed. (ECF No. 28.) On January 19, 2018, the Court directed respondents to respond to Rosky's claim that his petition is timely under the actual innocence exception of Schlup v. Delo, 513 U.S. 298 (1995) ("gateway claim of actual innocence"). (ECF No. 42.) The Court further ordered Rosky to provide a copy of an audio recording he relies on for his gateway claim of actual innocence, along with any and all evidence authenticating the recording. (Id.) Respondents and Rosky have responded to the Court's order. (ECF Nos. 49 & 51.) In addition, following an order of the Court, respondents have filed the subject audio recordings as manual exhibits. (See ECF Nos. 52, 53, 54.)
Rosky challenges his state court convictions for indecent exposure and sexual assault. (Exhs. 75, 80, 161, 163.) Rosky was initially found guilty on both counts following a jury trial in 2003, but on appeal the Nevada Supreme Court reversed the sexual assault conviction and remanded for a new trial. (See Exhs. 77, 80, 128.) Rosky's second trial commenced on March 27, 2006. At trial, the following evidence was presented.
The victim, C.J., met Rosky during a snowball fight in their apartment complex, and they became friends. (Exh. 155 (Tr. 48).) C.J. began spending time at Rosky's apartment, watching T.V. or playing on the computer. (Id. at 48-49.) Rosky would often give her gifts, such as cash and C.D.s, or take her out to eat. (Id. at 49.) Sometimes, they would wrestle, and when Rosky pinned C.J. down she would jokingly yell "rape," which caused Rosky to immediately stop. (Exh. 156 (Tr. 64-65 & 93).) C.J. came home after one of these wrestling sessions and told her grandmother about it; her grandmother could tell by the tone of her voice or the way she said it that she was uncomfortable. (Exh. 155 (Tr. 149).)
Once, Rosky and C.J. drove together from Reno to Susanville to get a dog — a dog that Rosky told C.J. was hers and for her to take care of. (Id. at 52.) C.J. and Rosky spent a great deal of time together, including writing each other emails, talking on the phone, and walking the dog. (Id. at 62-63.) C.J. also had a key to Rosky's apartment. (Exh. 155 (Tr. 157-58).) C.J. went over to Rosky's apartment frequently in the year before the assault, and by December 1999 was going up to five times a week. (Id. at 62.) C.J. was, at the time, 13 years old. (See Exh. 155 (Tr. 140).)
C.J.'s friend, Brittany Middleton, testified that Rosky bought C.J. things and that C.J. would go to Rosky's apartment "all the time," including at night and almost every day in the month leading up to the assault. (Exh. 155 (Tr. 170-72 & 182).) Middleton also testified that C.J. was very attached to the dog Rosky got for her. (Id. at 175.) Middleton sometimes observed Rosky walking the dog by C.J.'s apartment and looking into her windows or patio. (Id. at 177.) She also testified that Rosky always threatened to get rid of the dog, and that that was one of the reasons C.J. would go over to Rosky's apartment. (Id. at 174.) Middleton testified that toward the end of December 1999, Rosky started getting "real pushy towards CJ and it seemed like more controlling." (Id.)
C.J. testified that the night of the assault, which occurred at the end of December 1999, she and her friends had been drinking at Rosky's apartment as part of a New Year's Eve celebration. (Exh. 156 (Tr. 70-72).) She did not remember how much she had to drink, but it was more than usual and she felt dizzy, out of sorts, and not in control of all her senses. (Id. at 53-54.) When her friends left for another party, C.J. stayed behind. (Id. at 71-72.) Then, she testified, she and Rosky went into the bedroom, where he forced her to have sex. (Id. at 53-56 & 72.) Rosky did not forcibly take C.J. into the bedroom or threaten her; she voluntarily walked into the room. (Id. at 72-73). And she did not fight against Rosky or say anything, including "no," "stop," or "rape." (Id. at 54-55 & 75-76.) That, C.J. testified, was because she was "really drunk and . . . didn't know what to do." (Id. at 55.) Afterwards, C.J. went home, feeling "all out of sorts" and "really violated." (Id. at 56.)
C.J. did not immediately tell anyone about the assault and in fact continued going over to Rosky's house after it happened. (Exh. 156 (Tr. 79). She testified that she did not tell anyone about the incident because she was embarrassed. (Id.) Her grandmother also testified that C.J. felt ashamed and guilty and "totally block[ed]" the incident "out." (Exh. 155 (Tr. 163-64).) C.J. testified that she continued going over to Rosky's house both because she was afraid of him and because he gave her things. (Exh. 156 (Tr. 90-94).) Specifically, C.J. testified she thought Rosky might hurt her, their dog, or her boyfriend if she told anyone about the assault or if she stopped coming over. (Id. at 90-91.)
Sometime in January 2000, C.J. told Middleton what had happened; Middleton then told her father, who contacted the police.
Officer Michael Tone interviewed C.J. on February 2, 2000, at which time she denied the assault or any sexual contact with Rosky at all. (Exh. 155 (Tr. 57, 80-81 & 113).) C.J. told Tone that one time, at the end of December 1999, she and her friends had been partying at Rosky's; she stated that she had not been drinking, that Rosky was grossly intoxicated, and that everyone left after Rosky passed out. (Exh. 156 (Tr. 117-18).)
Around February 8, 2000, C.J. called the police to report that she thought Rosky was having sex because she heard him through the wall of his apartment. (Id. at 81-82 & 120.) Afterwards, she went over to Rosky's apartment and scratched something on his door. (Id.)
Sometime after Tone's first interview with C.J., C.J.'s grandmother brought Tone emails she had found that were between Rosky and C.J. (Id. at 10.) Some of the emails were forwarded from Rosky to C.J. of emails between Rosky and a woman named "Gina Newby," who C.J. believed was a "really close" friend of Rosky's. (Exh. 156 (Tr. 95, 103.) The content of the emails regarded Rosky and C.J.'s relationship and things that had happened between them, including drinking, C.J. coming over at night, and Rosky researching why C.J. had missed her menstrual cycle. (Id. at 104.) "Gina" would respond by saying things like, "I'm really glad that you two are together, you seem to really care a lot about each other. . . . I know that [C.J]'s got you wrapped around her finger. . ." (Id.) Another email from Rosky to C.J., dated February 10, 2000, laid out a number of rules, including that C.J. was limited to four alcoholic drinks in a night if she had to be up early the next day, and that on school nights she had to be home by 1 a.m. (Exh. 156 (Tr. 12-13).)
Sometime before February 15, 2000, C.J. called a woman named Gina Newby, who she believed to be the "Gina" from Rosky's emails; C.J. attempted to speak to her about the emails, but Newby didn't seem to know what she was talking about and C.J. thought she was "playing dumb." (Id. at 97-98.) Newby later filed a police report against Rosky asserting that he was sending emails to C.J., and the case was assigned to Officer Tone. (Exh. 156 (Tr. 100).) Tone realized that the Newby case and this case were related and that Rosky had manufactured the emails between himself and "Gina" that he had sent to C.J. (Id. at 100-03.)
On February 16, 2000, Tone again interviewed C.J. Again, C.J. denied the assault. However, after Tone revealed to C.J. that email "Gina" was Rosky himself, C.J. told Tone about the assault. (Exh. 156 (Tr. 95-96 & 129-31).)
Tone and Detective Thomas Reid interviewed Rosky. (See Exh. 156 (Tr. 23).) At least part of the interview was played for the jury, and Reid and Tone also testified as to what Rosky told them. (See Exh. 155 (Tr. 197-200); Exh. 156 (Tr. 24-31).) During the interview, Rosky initially denied even being friends with C.J. and changed his story several times before finally admitting that he'd had sexual intercourse with C.J. (Exh. 155 (Tr. 198-200); Exh. 156 (Tr. 24-31).)
On March 29, 2006, the jury found Rosky guilty of sexual assault. (Exh. 161.) Rosky was sentenced to a term of life imprisonment with eligibility for parole after twenty years, to run concurrent with his twelve-month sentence on the indecent exposure conviction. (Exh. 163.)
Rosky appealed. (Exh. 167.) The Nevada Supreme Court affirmed. (Exh. 183). Remittitur, which initially issued on March 11, 2008, was recalled and stayed pending consideration of Rosky's motion for rehearing en banc. (Exhs. 186, 189.) On July 7, 2008, the Nevada Supreme Court denied the motion for rehearing, and on August 1, 2008, remittitur issued. (Exhs. 194,197.)
Before his direct appeal became final, Rosky filed a petition for postconviction relief in state court. (Exh. 188.) The district court denied relief, and Rosky appealed. (Exhs. 260, 262.) The Nevada Supreme Court affirmed, and remittitur issued on July 8, 2013. (Exhs. 290, 292.)
On September 4, 2013, Rosky dispatched a federal petition for writ of habeas corpus to this court, commencing Case Number 2:13-CV-01707-JCM-PAL. The petition asserted a single double jeopardy claim. (ECF Nos. 1, 9 in Case No. 2:13-CV-01707-JCM-PAL.) On initial review, the court ordered Rosky to show cause why the petition should not be dismissed as completely unexhausted. (ECF No. 8 in Case No. 2:13-CV-01707-JCM-PAL.) As Rosky's response conceded that the single claim presented was not exhausted, the court dismissed the petition. (ECF Nos. 10, 12 in Case No. 2:13-CV-01707-JCM-PAL.) Rosky appealed, and the Ninth Circuit denied a certificate of appealability. (ECF Nos. 14 & 16 in Case No. 2:13-CV-01707-JCM-PAL.)
On November 21, 2014, Rosky filed a second postconviction habeas petition in state court. (Exh. 293.) After the district court dismissed the petition as procedurally barred and the Nevada Court of Appeals affirmed, Rosky filed the instant federal habeas petition. (Exhs. 310, 322; ECF No. 2.) Rosky dispatched the petition in this case on March 7, 2016.
Respondents move to dismiss the instant petition on several grounds, including that it was filed after the expiration of the one-year statute of limitations for petitions filed pursuant to 28 U.S.C. § 2254.
The one-year limitation period for § 2254 petitions begins to run after the date on which the judgment challenged became final by the conclusion of direct review or the expiration of the time for seeking such direct review, unless it is otherwise tolled or subject to delayed accrual.
Because Rosky filed a timely petition for state postconviction habeas relief before his conviction became final, the limitations period in this case did not begin to run until July 8, 2013 — the date remittitur issued on the appeal of the denial of the petition. Absent a basis for either delayed accrual or other tolling, the federal limitation period thus expired on July 8, 2014. Rosky's petition in this case, dispatched for filing on March 7, 2016, is thus apparently untimely.
Neither Rosky's first federal petition nor his second, untimely, state postconviction petition tolled the limitations period. Duncan, 533 U.S. at 172; Pace, 544 U.S. at 413. Rosky asserts that his petition may be considered timely pursuant to Schlup v. Delo, 513 U.S. 298 (1995) because he is actually innocent or, in the alternative, that he is entitled to equitable tolling.
Demonstrating actual innocence is a narrow "gateway" through which a petitioner can obtain federal court consideration of habeas claims that are otherwise procedurally barred, including claims filed after the expiration of the federal limitations period. Schlup, 513 U.S. at 314-15; Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011) (en banc) (A "credible claim of actual innocence constitutes an equitable exception to AEDPA's limitations period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits."); see also McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). In this regard, "actual innocence" means actual factual innocence, not mere legal insufficiency. See, e.g., Sawyer v. Whitley, 505 U.S. 333, 339 (1992). "[T]enable actual-innocence gateway pleas are rare.'" McQuiggen, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 329); see also House v. Bell, 547 U.S. 518, 538 (2006) (emphasizing that the Schlup standard is "demanding" and seldom met). To satisfy the narrow Schlup standard, a petitioner must come forward with new, reliable evidence that was not presented at trial that, together with the evidence adduced at trial, demonstrates that it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt. Schlup, 513 U.S. at 329.
The evidence need not be newly discovered, but it must be "newly presented." See Griffin v. Johnson, 350 F.3d 956, 961-63 (9th Cir. 2003). A "petitioner may pass through the Schlup gateway by promulgating evidence that significantly undermines or impeaches the credibility of witnesses presented at trial, if all the evidence, including new evidence, makes it `more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002).
In support of his gateway claim of actual innocence, Rosky invokes Grounds Five through Ten of his petition. (ECF No. 28 at 4; ECF No. 2 at 80-99.) As an initial matter, Grounds Five and Ten are legal arguments, not evidence. Accordingly, Grounds Five and Ten do not provide a basis for passing through the Schlup gateway.
In Ground Six, Rosky asserts that an audio tape recording of a conversation between himself and C.J., recorded on January 26, 2000 — after the assault — undermines C.J.'s credibility by showing she: (1) was in a consensual intimate relationship with Rosky, possessed intimate knowledge of his anatomy and "desired to perform fellatio" on him; (2) was not embarrassed to talk about sex and possessed knowledge of sex beyond her years; and (3) was not behaving as one who had just been assaulted by Rosky one month prior and in fact was comfortable with Rosky. (ECF No. 2 at 84-87.) Respondents argue that this evidence is not new or reliable but that even if it were it does not show Rosky is actually innocent.
The Court will assume without deciding that the audiotape constitutes new, reliable evidence.
The audio recordings were filed manually as Exhibits 324 and 325.
(See ECF No. 2-1 (38-40); Exh. 325.)
The recordings do not prove that C.J. was in a consensual sexual relationship with Rosky before, after or at the time of the assault, and in no way prove that she consented to have sex with Rosky on the night in question. Nor is the Court convinced that the recordings would have significantly undermined C.J.'s credibility.
Rosky suggests that C.J.'s ease in discussing sex with him contradicts her explanation for why she initially denied the assault, i.e., that she was embarrassed. However, that C.J. was comfortable speaking sexually to Rosky has no bearing on whether she was comfortable speaking about sex, particularly a sexual assault, with the world at large. This is particularly true given that the clear tenor of the recorded conversation was teasing or flirtatious; the impression left is not that C.J. was engaging Rosky in a serious sexual discussion, particularly when C.J.'s age (14 years old at the time) is taken into consideration.
Finally, Rosky argues that the tape shows C.J. was not behaving as one who had just been assaulted by him one month prior and that it shows that she was comfortable with him. However, C.J. testified that she continued to have a relationship with Rosky after the assault because she was "kind of afraid" of him and because he gave her things. C.J.'s behavior is not necessarily inconsistent with having been assaulted a few weeks prior, especially given that C.J. and Rosky had a close relationship that extended over a lengthy period before that time. Moreover, if C.J. was motivated to keep seeing Rosky because she was afraid of him and she wanted him to give her things, she might also have been motivated to keep their relationship as normal as possible, even if she might have been feeling otherwise. The evidence therefore does not significantly undermine C.J.'s testimony.
In light of all the other evidence presented at trial, the Court cannot conclude that it is more likely than not that no reasonable juror would have convicted Rosky if the recordings had been presented at trial. Even considering the audio tape recordings, a reasonable juror could certainly conclude that Rosky assaulted C.J. on December 31, 1999. Petitioner therefore has not established a gateway claim of actual innocence based on the audio recordings.
In Ground Seven, Rosky asserts that a medical report documenting C.J.'s visit with Dr. Holly Rooney on February 10, 2000, demonstrates his innocence because:
Assuming that this is new evidence, it does not prove Rosky is actually, factually innocent and does not significantly undermine C.J.'s credibility. First, that C.J. told her doctor she was in a sexual relationship with a 13-year-old boy and denied having sexual contact with Rosky does not prove that either of those statements is true. C.J. went to the doctor for a pregnancy test and thus may have felt a need to explain who might have gotten her pregnant. A reasonable juror could conclude C.J. was deflecting in order to cover up the assault because she was embarrassed and ashamed, perhaps in part because Rosky was a much older man. Moreover, C.J.'s visit with Dr. Rooney came at a time when she was still denying any sexual contact with Rosky to the police. It is therefore perfectly consistent that she would also deny the assault to Dr. Rooney. Second, that C.J. spoke to her doctor about her sexual activity in no way proves that she was "not too embarrassed to inform anyone of the sexual assault"; what someone feels comfortable discussing with her doctor is no indication of what she would feel comfortable discussing outside the doctor's office, including with police. Third, whatever C.J.'s grandmother believed regarding the charges the police might bring against Rosky is immaterial. Finally, nothing in the medical report establishes that Rosky was C.J.'s confidant. That allegation is based on Rosky's own memory that C.J. told him about visiting the doctor. (ECF No. 2 at 88-90.) Petitioner's own self-serving statements are inherently unreliable and therefore cannot establish actual innocence.
At base, Rosky is arguing that the medical report shows that C.J. was inconsistent in her story, undermining her credibility. However, the inconsistencies and changes in C.J.'s story were thoroughly examined at trial. The Court cannot conclude that, presented with this evidence and in light of all the other evidence presented at trial, no reasonable juror would have found Rosky guilty beyond a reasonable doubt. Accordingly, Rosky cannot pass through the Schlup gateway on the basis of Ground Seven.
In Ground Eight, Rosky asserts that that the medical report of C.J.'s SART (Sexual Assault Response Team) exam on February 28, 2000, shows he is actually innocent because C.J.'s statements therein contradict her statements to Dr. Rooney and others, and because the report indicates no healing sexual assault injuries.
Again, assuming this is new evidence, it does not show that Rosky is factually innocent. The lack of any healing sexual assault injuries does not establish that no sexual assault took place, particularly when the exam occurred nearly two months after the assault. And, as discussed above, C.J.'s inconsistent statements were thoroughly explored at trial, even if these specific inconsistencies were not discussed. While further evidence of C.J.'s prior inconsistent statements could have had some impact on the jury's assessment of C.J.'s credibility, the Court is not persuaded that no reasonable juror would have found Rosky guilty beyond a reasonable doubt had this evidence been presented at trial. Accordingly, the evidence in Ground Eight does not establish Rosky's innocence and does not provide a basis for passing through the Schlup gateway.
In Ground Nine, Rosky asserts that police reports
To the extent Rosky argues that the January 25, 2000, report provides reliable new evidence demonstrating his innocence, the report is essentially duplicative of evidence that was presented at trial and thus is not new. C.J. testified that she did not call police and that she initially denied the assault to Tone. (See Exh. 156 (Tr. 57, 80-81).) While Rosky's argument focuses instead on C.J.'s very first encounter with officers on January 25, 2000, as opposed to her interview with Tone on February 2, 2000, the fact she denied the assault on January 25, 2000, is not materially different from the fact she denied it on February 2, 2000.
C.J.'s statement to Tone on February 16, 2000, that she and Rosky "just had regular sex" is not demonstrative of Rosky's innocence. Nothing about that statement — alone or in context — suggests that the sex was consensual.
As to Rosky's claim that C.J. stated that she was in love with Rosky, no such statement appears in Tone's police reports.
Rosky's assertion regarding the failure to investigate C.J.'s friends is a nonstarter. Rosky asserts that because C.J. left with her friends, the assault could only have happened while they were there, and thus the fact no one heard or saw anything in his small apartment establishes his innocence. However, at trial, C.J.'s conflicting accounts were clearly laid out: She had first claimed to have left with her friends but later stated she had stayed behind. C.J. was not assaulted in the version of the story where she left with her friends. It was in the version where she stayed behind that the assault took place. The jury chose to believe C.J.'s testimony despite these conflicting stories, and accept her testimony that Rosky assaulted her. Rosky's argument in this regard is therefore unpersuasive.
In Ground Nine, Rosky also asserts that two witnesses — Middleton and Johnathan Mosbacher — can prove his innocence. (ECF No. 2 at 95-96.) Middleton and Mosbacher testified at Rosky's September 1, 2011, state postconviction evidentiary hearing that Rosky and C.J. were in a relationship and pursuing each other. (Exh. 248 (Tr. 134-74).) The Court first notes that the reliability of this evidence is somewhat suspect, as it came nearly 12 years after the event in question. Even if this were reliable evidence, however, it does not prove Rosky's innocence or have any bearing on whether C.J. consented to sexual intercourse the night of December 31, 1999. Moreover, it does not significantly undermine C.J.'s credibility as it is nothing more than the observation of two third parties. Even if this evidence could have impacted the jury's evaluation of C.J.'s credibility, the testimony is not substantially different from the cumulative evidence of C.J.'s and Rosky's relationship that was presented at trial. From the evidence presented at trial, a juror could have concluded that Rosky and C.J. were in some type of relationship. The Court is thus not sanguine that the result would have been any different had this testimony been presented, much less that no reasonable juror could have convicted Rosky in light of it. Ground Nine thus does not provide a basis for passing through the Schlup gateway.
None of the evidence Rosky cites disproves C.J.'s claim that Rosky forced her to have sex, and to the extent it may arguably be said to undermine C.J.'s credibility, it does not do so significantly. Evidence of C.J.'s different stories and the nature of her relationship with Rosky were thoroughly explored at trial, and the jury still found Rosky guilty of sexual assault beyond a reasonable doubt. Even if all the above evidence had presented at trial, the Court is not persuaded that no reasonable juror would have voted to convict. Accordingly, Rosky has failed to satisfy the standard for establishing a gateway claim of actual innocence, and his petition cannot therefore be considered timely on that basis.
Rosky asserts two bases for equitable tolling. First, he asserts that the limitations period should be tolled for the 13-month period during which his first federal court petition was pending before it was dismissed. Second, he asserts that his state court attorney abandoned him during state court proceedings because she refused to assert his double jeopardy claim in his state petition and never notified him that the Nevada Supreme Court had decided the appeal of the denial of his first state habeas petition. (ECF No. 2 at 17-26.)
Equitable tolling is appropriate only if the petitioner can show that: (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is "unavailable in most cases," Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), and "the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule," Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner ultimately has the burden of proof on this "extraordinary exclusion." 292 F.3d at 1065. He accordingly must demonstrate a causal relationship between the extraordinary circumstance and the lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Accord Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007).
Rosky's petition was filed twenty months after the limitations period expired. Thus, in order for the petition to be considered timely in this case, Rosky must establish equitable tolling for that amount of time.
The length of time the court took to decide Rosky's first, completely unexhausted federal petition does not provide a basis for equitable tolling. While the time it took for the court to dismiss Rosky's first petition was out of his control, it was not an extraordinary circumstance. There has been no allegation that the court's dismissal of the petition was unjustified, nor could such a viable argument be made. See Carjasso v. Ayers, 278 F.3d 874 (9th Cir. 2002). Rosky is not entitled to equitable tolling while his first federal petition was pending.
Rosky's second tolling argument is that his counsel abandoned him during state postconviction proceedings. Abandonment by counsel can be a basis for equitable tolling. See Gibbs v. LeGrand, 767 F.3d 879, 887 (9th Cir. 2014). Rosky argues, first, that counsel abandoned him by refusing to raise a double jeopardy claim. In the context of this case, counsel's conduct hardly amounts to abandonment. Rosky claims that on February 24, 2013, he wrote to counsel asking her to assert a double jeopardy claim. However, by this time the state trial court had already decided his first state habeas petition and his appeal thereof had been pending before the Nevada Supreme Court for nearly ten months, fully briefed for more than two. Counsel's refusal to amend a petition that was already on appeal — particularly with a meritless claim, which Rosky's double jeopardy argument is — did not constitute abandonment. Nor was counsel's failure to file a motion for reconsideration or for en banc rehearing after the Supreme Court's decision on his postconviction appeal abandonment. Rosky does not allege that he failed to file a timely petition because he believed counsel was taking steps that she was not in fact taking. In point of fact, counsel told Rosky that she would not be filing any more documents in his case. Accordingly, petitioner cannot establish a basis for equitable tolling based on counsel's failure to raise his double jeopardy claim in state court.
Rosky's second assertion of abandonment — that counsel never notified him that the Supreme Court had decided his first petition — is a closer question. (ECF No. 2 at 24.) Rosky argues that he learned about the decision only from prison law library staff, though he does not identify when he learned about it. Rosky filed a federal habeas petition in September 2013, but did not reference his state postconviction proceeding therein, so it is unclear whether he was aware of Nevada Supreme Court's decision at that time. (ECF No. 1 in Case No. 2:13-cv-1707-JCM-PAL.) However, the court's May 30, 2014, order to show cause in the first federal action noted the Nevada Supreme Court's decision on Rosky's postconviction appeal. (ECF No. 8 in Case No. 2:13-cv-1707-JCM-PAL). Rosky dispatched an amended petition in accordance with the order to show cause on June 12, 2014, demonstrating that he both received and understood the court's order. (ECF No. 9 in Case No. 2:13-cv-1707-JCM-PAL). Thus, even assuming counsel never told Rosky about the decision in his postconviction appeal, Rosky knew about the decision by June 12, 2014, at the latest and therefore would not be entitled to tolling past that point. And even if the clock were tolled until June 12, 2014, the petition in this case, filed on March 7, 2016, would still be untimely.
As the petition in this case was not timely filed, it will be dismissed with prejudice for failure to file the petition within the one-year limitation period in 28 U.S.C. § 2244(d).
In order to proceed with an appeal, Rosky must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9
Reasonable jurists would not find this Court's dismissal of the petition as untimely to be wrong or debatable. Rosky has not established or argued any basis for equitable tolling that would make the instant petition timely. Nor has he established that he is actually innocent. The Schlup standard is demanding and is one that is rarely met. Rosky has not come forward with any new, reliable evidence establishing that it is more likely than not that no reasonable juror would have voted to find him guilty of sexual assault. Accordingly, the Court concludes that Roksy has not satisfied the standard for issuance of a certificate of appealability.
In accordance with the foregoing, it therefore is ordered that the petition in this case will be dismissed with prejudice as untimely.
It further is ordered that the Court denies a certificate of appealability, as reasonable jurists would not find the district court's dismissal of the petition as untimely to be wrong or debatable, for the reasons discussed herein.
It is further ordered that the Clerk of Court enter final judgment accordingly, in favor of respondents and against petitioner, dismissing this action with prejudice.
