Carnell Evans v. Jeffrey Beard, No. 2:2015cv03749 - Document 18 (C.D. Cal. 2015)

Court Description: MEMORANDUM OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS, DENYING PETITION, AND DISMISSING ACTION WITH PREJUDICE by Magistrate Judge Jean P. Rosenbluth. For the reasons stated in Respondent's motion to dismiss,2 the Petit ion is time barred by at least 10 years and possibly as many as 16. IT THEREFORE IS ORDERED that (1) Respondent's motion to dismiss is GRANTED and (2) Judgment be ENTERED denying the Petition and dismissing this action with prejudice. (See Order for details) 11 , (bem)

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Carnell Evans v. Jeffrey Beard Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CARNELL EVANS, Petitioner, 12 13 v. 14 JEFFREY BEARD, Secretary, Respondent. 15 16 17 ) ) ) ) ) ) ) ) ) ) ) Case No. CV 15-3749-JPR MEMORANDUM OPINION AND ORDER GRANTING RESPONDENT’S MOTION TO DISMISS, DENYING PETITION, AND DISMISSING ACTION WITH PREJUDICE On May 3, 2015, Petitioner constructively filed a Petition 18 for Writ of Habeas Corpus by a Person in State Custody, 19 challenging his 1997 convictions for assault with enhancements. 20 (Pet. at 3, 23.)1 21 jurisdiction of the undersigned Magistrate Judge. 22 2015, Respondent filed a motion to dismiss the Petition as time 23 barred. 24 Petitioner did not timely file opposition to the motion to 25 dismiss. He subsequently filed notice consenting to the On August 17, He also consented to the undersigned’s jurisdiction. Accordingly, on September 29, 2015, after confirming on 26 27 28 1 Because the Petition and its exhibits are not sequentially numbered, the Court uses the pagination from its Case Management/Electronic Case Filing system. 1 Dockets.Justia.com 1 the California Department of Corrections and Rehabilitation’s 2 Inmate Locator website that Petitioner remained incarcerated at 3 his address of record, the Court sua sponte extended the time for 4 him to file opposition to the motion to dismiss by 20 days. 5 date, however, Petitioner has not filed any opposition. 6 To The Court has independently reviewed the exhibits submitted 7 by Petitioner with his Petition as well as the state-court record 8 lodged by Respondent. 9 motion to dismiss,2 the Petition is time barred by at least 10 For the reasons stated in Respondent’s 10 years and possibly as many as 16. 11 (1) Respondent’s motion to dismiss is GRANTED and (2) Judgment be 12 ENTERED denying the Petition and dismissing this action with 13 prejudice. IT THEREFORE IS ORDERED that 14 15 DATED: November 10, 2015 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2 As Respondent notes (Mot. at 7-10), Petitioner’s actualinnocence claim cannot save him from the AEDPA statute of limitations, see 28 U.S.C. § 2244(d)(1), because he has not presented any “new” evidence in support of the claim. As Respondent points out (Mot. at 9), Anthony Herod’s March 2013 witness statement is generally consistent with his trial testimony. If anything, the statement is less favorable to Petitioner, as in it Herod states that he didn’t see whether Petitioner had a gun but someone in his group “likely” did (Pet., Exs. pt. 3 at 10), whereas at trial he testified unequivocally that Petitioner did not have a gun (Lodged Doc. 9, 3 Rep.’s Tr. at 476). 2

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