Shane Newman v. Warden, No. 2:2016cv04198 - Document 38 (C.D. Cal. 2016)

Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Beverly Reid O'Connell for Report and Recommendation (Issued), 33 (sbu)

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Shane Newman v. Warden Doc. 38 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 SHANE NEWMAN, Petitioner, 13 14 15 Case No. CV 16-04198 BRO (RAO) v. WARDEN, Respondent. 16 ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings, all of the 19 records and files herein, and the Magistrate Judge’s Report and Recommendation. 20 Further, the Court has engaged in a de novo review of those portions of the Report 21 and Recommendation to which Petitioner objected. 22 Petitioner argues for the first time in his Objections that he is entitled to 23 equitable tolling of the AEDPA limitations period because he is actually innocent. 24 (Objections at 1-2.) The Court is not required to consider allegations raised for the 25 first time in objections. United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). 26 Notwithstanding Petitioner’s failure to raise this claim in a timely manner, the 27 Court determines that it is without merit, and Petitioner is not entitled to equitable 28 tolling. Dockets.Justia.com 1 A petitioner may qualify for an equitable exception to AEDPA’s limitations 2 period by proving actual innocence. McQuiggin v. Perkins, --- U.S. ---, 133 S. Ct. 3 1924, 1928, 185 L. Ed. 2d 1019 (2013). But the actual innocence exception has an 4 extremely high threshold requirement which is seldom met. Id. To be credible, a 5 petitioner’s claim of actual innocence must be supported “with new reliable 6 evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness 7 accounts, or critical physical evidence—that was not presented at trial.” Schlup v. 8 Delo, 513 U.S. 298, 324, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1994). “‘[A] petitioner 9 does not meet the threshold requirement unless he persuades the district court that, 10 in light of the new evidence, no juror, acting reasonably, would have voted to find 11 him guilty beyond a reasonable doubt.’” McQuiggin, 133 S. Ct. at 1928 (alteration 12 in original) (citation omitted). 13 In support of his claim of actual innocence, Petitioner identifies two 14 witnesses, who were not called at trial by defense counsel, and states that “[h]ad 15 they testified, they would have sworn under oath to petitioner’s innocence.” 16 (Objections at 2.) Petitioner further states that his counsel knew of this evidence, 17 but did not present it. (Id. at 1.) Petitioner’s conclusory statements in support of 18 his actual innocence claim are insufficient to meet the high threshold for qualifying 19 for this form of equitable tolling. While Petitioner identifies the two witnesses who 20 allegedly would establish his innocence, he fails to describe what their testimony 21 would have been had they testified, why the witnesses are reliable, or how their 22 testimony would necessarily show that, in light of this new evidence, no reasonable 23 juror would have convicted him when compared with the evidence presented at 24 trial. Accordingly, Petitioner has failed to carry his burden of showing that he is 25 entitled to equitable tolling based on actual innocence. The Court accepts the findings and recommendations of the Magistrate 26 27 Judge. 28 /// 2 1 IT IS HEREBY ORDERED that Respondent’s Motion to Dismiss the 2 Petition as untimely be granted and that judgment be entered denying the Petition 3 for Writ of Habeas Corpus and dismissing this action with prejudice. 4 IT IS SO ORDERED. 5 6 7 8 9 DATED: December 5, 2016 By: Honorable Beverly R. O’Connell United States District Court Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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