-RNB Kevin Tyrome Perry v. Domingo Uribe (Acting Warden), No. 8:2011cv00692 - Document 28 (C.D. Cal. 2011)
Court Description: ORDER by Judge R. Gary Klausner, Accepting Findings and Recommendations of the United States Magistrate Judge 26 . (twdb)
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-RNB Kevin Tyrome Perry v. Domingo Uribe (Acting Warden) Doc. 28 1 o 2 3 FILED CLERK, U.S. DISTRICT COURT 4 j I I 1 DEC I 5201l 5 6 AUFORNIA DEPUTY 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 KEVIN TYROME PERRY, 12 Petitioner, 13 14 15 vs. DOMINGO URIBE, Acting Warden, Case No. SACV 11-0692-RGK (RNB) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE Respondent. 16 17 Pursuant to 28 U.S.C. ยง 636, the Court has reviewed the Petition, all the 18 records and files herein, and the Report and Recommendation of the United States 19 Magistrate Judge. Objections to the Report and Recommendation have been filed by 20 petitioner, and the Court has made a de novo determination of those portions of the 21 Report and Recommendation to which objections have been made. 22 23 24 25 26 27 28 For the reasons stated in the Report and Recommendation, the Court concurs with and accepts the following findings by the Magistrate Judge: 1. Unless a basis for tolling the statute existed, petitioner's last day to file his federal habeas petition was September 21,2005. 2. Petitioner has not met his burden of demonstrating that statutory tolling rendered the filing of the Petition herein timely. 3. Petitioner has not met his burden of demonstrating 1 Dockets.Justia.com 1 entitlement to sufficient equitable tolling to render the filing of the 2 Petition herein timely. 3 4 In his objections to the Magistrate Judge's finding that petitioner has not made 5 a sufficient showing for application of the "actual innocence" exception to the 6 AEDPA statute of limitations, petitioner contends that the Magistrate Judge "failed 7 to recognize and address" petitioner's actual innocence claim. Specifically, petitioner 8 takes issue with the following statement in the Report and Recommendation: 9 Here, petitioner is not contending that he is actually innocent of 10 the crime of conviction (i.e., residential burglary). Rather, he is 11 contending that he is "actually innocent" ofthe two prior convictions 12 that were used to enhance his sentence. (See Am. Opp. at 8-12.) 13 14 According to petitioner, this statement was factually incorrect because he is 15 contending that he is actually innocent of his current conviction. The Court has 16 reviewed petitioner's Amended Opposition to respondent's Motion to Dismiss. 17 Section II of the Amended Opposition is entitled, "Petitioner's Claims of Error Fall 18 Within the 'Actual Innocence' Exception to the AEDPA's Statute of Limitations." 19 Subsection II.A is entitled, "Petitioner Is 'Actually Innocent" ofthe Habitual Criminal 20 Allegations, Found to Be True by the Trial Judge. In that section, petitioner did 21 contend that the "actual innocence" exception applied here because his waiver of 22 counsel just before the start of his 1995 trial that resulted in the convictions used to 23 enhance his current sentence was "not made knowingly and intelligently." Section 24 II.B is entitled, "Petitioner's Decision to Waive Counsel, Both Before the Beginning 25 of his 2001 Trial, and Again, Before Sentencing, Was Not Made Intelligently and 26 Knowingly, Where It Was Based on Inaccurate Information From His Attorneys, 27 Appointed to Represent Him." 28 Opposition, petitioner did assert, "Petitioner has never wavered in his assertion ofhis In that section, on page 12 of the Amended 2 1 innocence of the charge of 1st degree burglary." Thus, petitioner is correct that the 2 Magistrate Judge failed to address this part ofpetitioner's "actual innocence" claim. 3 However, the Magistrate Judge's rationale for rejecting the part ofpetitioner's 4 "actual innocence" claim relating to the prior 1995 convictions applies with equal 5 force to the part of petitioner's "actual innocence" claim relating to his current 6 conviction. Petitioner has conflated the concept ofactual innocence with the concept 7 oflegal innocence. To satisfy the Schlup standard, a petitioner must adduce evidence 8 establishing his actual innocence, as opposed to legal innocence as a result of legal 9 error. Petitioner has not even purported to adduce the requisite new reliable evidence 10 of his actual innocence of the 2002 residential burglary conviction that was not 11 presented in his 2002 trial. To the extent petitioner is relegated to contending that the 12 Schlup standard does not apply to a petitioner seeking to invoke the "actual 13 innocence" exception to the AEDPA statute of limitations based on alleged Gideon 14 violations, the Court notes that Leev. Lampert, 653 F.3d 929,931-32 (9th Cir. 2011) 15 (en bane) does not support such contention. Nor is the Court aware of any federal 16 authority that supports such contention. 17 The Court therefore also concurs with and accepts the recommendations ofthe 18 Magistrate Judge that the Court grant respondent's Motion to Dismiss and direct that 19 Judgment be entered dismissing this action with prejudice. 20 IT IS SO ORDERED. 21 22 DATED: December 13,2011 23 24 R. GARY KLAUSNER UNITED STATES DISTRICT JUDGE 25 26 27 28 3
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