Stewart v. Cate, No. 10-55985 (9th Cir. 2013)
Annotate this CasePetitioner, convicted of attempted murder, appealed from the district court's denial of his 28 U.S.C. 2254 habeas petition as untimely. The court concluded that a section 2254 petition was not statutorily tolled during the 100-day gap between the denial of his State Court of Appeals Petition and the filing of his State Supreme Court Petition. Therefore, petitioner's section 2254 petition was not timely filed. Further, petitioner failed to make a showing of actual innocence under Schlup v. Delo. The district court properly reached its decision without an evidentiary hearing. Accordingly, the court affirmed the judgment of the district court.
Court Description: Habeas Corpus. The panel affirmed the district court’s denial of an untimely 28 U.S.C. § 2254 habeas corpus petition. The panel first determined that petitioner was not entitled to statutory tolling for the 100-day gap between the denial by the California Court of Appeal of petitioner’s habeas petition and the filing of his petition in the California Supreme Court because there was no “properly filed” petition pending in state court during that time, and because the delay was unreasonable. Reviewing for abuse of discretion, the panel next held that petitioner failed to pass through the actual innocence gateway of Schlup v. Delo, 513 U.S. 298 (1995), and that the district court properly denied an evidentiary hearing. Judge Berzon dissented. She would hold that petitioner was entitled to statutory tolling because the 100-day gap was reasonable. Alternatively, Judge Berzon would remand with instructions to hold an evidentiary hearing on petitioner’s actual innocence claim because he has presented post- conviction evidence that, if credible, demonstrates this case to be the sort of extraordinary one that requires reaching the merits of petitioner’s otherwise barred federal habeas claims. Judge Berzon would also review the Schlup claim de novo instead of for an abuse of discretion.
The court issued a subsequent related opinion or order on May 1, 2014.
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