Ruben Herrera v. Secretary of Corrections, No. 2:2017cv05874 - Document 35 (C.D. Cal. 2018)
Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Cormac J. Carney. IT IS THEREFORE ORDERED that Judgment be entered denying the Petition and FAP as untimely, denying Petitioner's stay motion as moot, and dismissing this action with prejudice. (See document for further details.) 30 (sbou)
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Ruben Herrera v. Secretary of Corrections Doc. 35 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RUBEN HERRERA, Petitioner, 12 13 v. 14 SECRETARY OF CORRECTIONS, Respondent. 15 ) ) ) ) ) ) ) ) ) ) Case No. CV 17-5874-CJC (JPR) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE 16 17 The Court has reviewed the Petition and First Amended 18 Petition, records on file, and Report and Recommendation of U.S. 19 Magistrate Judge. 20 Petitioner filed objections, in which he mostly repeats arguments 21 and attaches exhibits already considered in prior filings.1 22 attachments, however, appear never to have been submitted to the 23 state court and thus cannot be considered here. See 28 U.S.C. § 636. On June 7, 2018, Some (See, e.g., 24 1 25 26 27 28 On April 9, 2018, the Court received notice from Petitioner that he had recently filed a habeas petition in the state supreme court. See also Cal. App. Cts. Case Info., https://appellatecases.courtinfo.ca.gov/ (search case no. S248049) (filed Apr. 4, 2018; signed Mar. 30, 2018) (last visited July 6, 2018). Because that petition was filed well after the AEDPA limitation period had expired, he is entitled to no statutory (or equitable) tolling for it. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Dockets.Justia.com 1 Objs., pt. 10 at 19 (photograph), 35 (attorney authorization, in 2 Spanish, signed by Petitioner),2 40-43 & 45 (correspondence from 3 California Innocence Project));3 see Cullen v. Pinholster, 563 4 U.S. 170, 181-82 (2011). 5 evidence were thoroughly addressed and rejected in the R. & R., 6 but some require brief discussion. 7 Plaintiff’s other arguments and Petitioner suggests that the untimeliness of his Petition 8 should be overlooked because he is “actual [sic] innocent” of 9 victim Valeria H.’s “false allegations.” (See Objs. at 101.) 10 Her testimony would supposedly have been “discredit[ed]” by such 11 “newly discovered” evidence as the “excluded” testimony of 12 Petitioner’s son (see, e.g., id. at 35-36, 40, 78, 82, 97) and 13 pictures showing that she and Petitioner — her father — were 14 “close” (see, e.g., id. at 52-53, 85, 86, 95-96). 15 in the R. & R., most of this evidence is not actually new. 16 R. & R. at 29-39.) 17 As discussed (See Moreover, the standard for an actual-innocence claim is 18 strict: actual innocence means “factual innocence” as opposed to 19 “mere legal insufficiency,” and a petitioner must show that it is 20 21 22 23 24 25 26 27 28 2 In his earlier pleadings, Petitioner argued that he deserved tolling because he was “ignoran[t] . . . of the English language.” (Opp’n at 46.) The Magistrate Judge rejected the argument because he had regularly demonstrated proficiency in English, given his many handwritten, English-language filings and letters. (R. & R. at 16-19.) In his objections, he admits in passing to having personally written the September 10, 2015 English-language letter to the California Supreme Court. (Objs. at 5.) 3 The Court uses the pagination generated by its Case Management/Electronic Case Filing system for documents not consecutively paginated. 2 1 “more likely than not that no reasonable juror would have 2 convicted him” in light of the “new evidence.” 3 United States, 523 U.S. 614, 623 (1998); Schlup v. Delo, 513 U.S. 4 298, 321 (1995). 5 “eyewitness” (Objs. at 35), would contradict Valeria H.’s 6 testimony (id. at 97), but he fails to present a declaration or 7 other evidence indicating how his son’s testimony would refute 8 the crimes he was convicted of or show that he was actually 9 innocent. See Bousley v. Petitioner here claims that his son, an alleged Even if such a declaration had been submitted, 10 Petitioner’s failure to present it to the state court would 11 prevent the Court from considering it here. 12 U.S. at 181-82. 13 See Pinholster, 563 At best, the son’s purported proposed testimony — and 14 apparently some family photographs — would have supported 15 Petitioner’s “character” and undermined Valeria H.’s (see id. at 16 35, 40, 52-53 78), but such evidence falls far short of the 17 Schlup standard. 18 2015 WL 10354777, at *8 (C.D. Cal. Dec. 11, 2015) (dismissing 19 petition as untimely and rejecting actual-innocence claim in part 20 because witness’s allegedly “false accusation” was at best 21 impeached by “new evidence,” not “refuted”), accepted by 2016 WL 22 738271 (C.D. Cal. Feb. 23, 2016). 23 presents no evidence regarding his trial counsel’s strategy for 24 not calling his son to testify; even assuming he was willing and 25 competent to do so, she could have reasonably believed that his 26 testimony, as a minor who loved his dad, would not carry much 27 weight. 28 2013) (as amended) (upholding reasonableness of trial counsel’s See Bibbs v. Pfeiffer, No. CV 15-2365 PA (AFM), Furthermore, Petitioner See Gentry v. Sinclair, 705 F.3d 884, 899-900 (9th Cir. 3 1 failure to obtain witness when petitioner presented no relevant 2 affidavits explaining that decision and it was possible witness 3 would not have been “useful to the defense” or that “counsel [may 4 have been] concerned about opening the door to damaging 5 rebuttal”). 6 In any event, as discussed in the R. & R. (see R. & R. at 7 34-37), the jury considered substantial evidence discrediting 8 Valeria H. and still convicted Petitioner; he thus fails to show 9 that it is more likely than not that no reasonable juror would 10 have convicted him in light of the “newly discovered” evidence. 11 See Bolin v. Grounds, No. SACV 11-00256 PSG (SS), 2011 WL 12 1692149, at *9 (C.D. Cal. Apr. 15, 2011) (rejecting actual- 13 innocence claim because petitioner “failed to submit any new 14 evidence demonstrating his factual innocence”; he “merely 15 assert[ed] that his trial was ‘contaminated’ with false evidence 16 ‘manufactured by the prosecution’” (citation omitted)), accepted 17 by 2011 WL 1672033 (C.D. Cal. May 4, 2011).4 18 19 20 21 22 23 24 25 26 27 28 4 Petitioner raises other claims and evidence, all of which were presented in earlier pleadings: his “28” character witnesses (see Objs. at 12, 34, 37, 39), the “false” testimony of Valeria H.’s husband (see id. at 14, 54, 64, 71, 84-85), and the fact that victim Rosa M. was menstruating at the time of the sexual abuse (see id. at 24, 61-63). They, like the claims and evidence discussed above, are conclusory or were already presented at trial. See Newman v. Warden, No. CV 16-04198 BRO (RAO), 2016 WL 7052025, at *1 (C.D. Cal. Dec. 5, 2016) (rejecting actualinnocence claim when petitioner identified two uncalled witnesses but failed to “describe what their testimony would have been had they testified, why the witnesses [were] reliable, or how their testimony would necessarily show that, in light of this new evidence, no reasonable juror would have convicted him”); George v. Allison, No. CV 11-5730-SJO (PLA), 2011 WL 7111912, at *7 (C.D. Cal. Dec. 14, 2011) (rejecting actual-innocence claim when petitioner’s arguments “concern[ed] witness testimony and other 4 1 Having reviewed de novo those portions of the R. & R. to 2 which Petitioner objects, the Court accepts the Magistrate 3 Judge’s findings and recommendations. 4 IT IS THEREFORE ORDERED that Judgment be entered denying the 5 Petition and FAP as untimely, denying Petitioner’s stay motion as 6 moot, and dismissing this action with prejudice. 7 8 9 DATED: July 12, 2018 CORMAC J. CARNEY U.S. DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 evidence that was presented to the jury” and “none of the assertions exonerate[d] him or prove[d] that a different individual committed the crimes for which he was convicted”), accepted by 2012 WL 261191 (C.D. Cal. Jan. 27, 2012). 5
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