(HC) Chestang v. Sisto, No. 2:2007cv01173 - Document 73 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 8/18/09 RECOMMENDING that respondent's 49 motion to dismiss be granted. Referred to Judge Lawrence K. Karlton; Objections to F&R due w/in 20 days. (Yin, K)
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(HC) Chestang v. Sisto Doc. 73 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DANIEL K. CHESTANG, 11 12 13 Petitioner, vs. D.K. SISTO, Warden, 14 Respondent. 15 16 No. CIV S- 07-1173 LKK GGH P FINDINGS AND RECOMMENDATIONS / Introduction 17 Petitioner, a state prisoner proceeding with retained counsel, has filed a petition 18 pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s August 8, 2008, motion 19 to dismiss, which came on for hearing on April 2, 2009, with David A. Eldridge representing 20 respondent and Randall Ensminger appearing for petitioner.1 This case currently proceeds upon a 21 second amended petition filed on April 18, 2008.2 Petitioner pled guilty to two counts of murder 22 (Cal. Penal Code § 187), admitted to use of firearm enhancements (Cal. Penal Code § 12022.5) 23 1 24 25 26 On July 9, 2009 (docket # 68), the undersigned expanded the record to include the preliminary hearing transcript filed by respondent on April 1, 2009 (docket # 67), the day before the hearing, and granted petitioner ten (10) days to file any response, after which a further extension of time was granted, and the response was filed on July 31, 2009 (docket # 72). 2 See Order, filed on April 25, 2008 (docket # 43). 1 Dockets.Justia.com 1 and was sentenced in Sacramento County Superior Court, on March 18, 1994, to a term of 60 2 years to life, which included a total of a ten-year determinate sentence for the enhancements to be 3 followed by two consecutive indeterminate 25-year-to-life terms. Second Amended Petition 4 (SAP), p. 2; Motion to dismiss (MTD), p. 1, citing Lodged Doc. 1. Petitioner challenges his 5 sentence upon the following grounds: 1) illegal sentence; 2) ineffective assistance of counsel; 3) 6 conviction arising from unlawfully induced or involuntary guilty plea, made without 7 understanding of the nature of the charge and the plea consequences. SAP, pp. 6-19. 8 Motion to Dismiss 9 Pending before the court is respondent’s motion to dismiss the petition, alleging 10 that the petition was not filed timely. The statute of limitations for federal habeas corpus 11 petitions is set forth in 28 U.S.C. § 2244(d)(1): 12 A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of– 13 14 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 15 16 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 17 18 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 19 20 21 22 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 23 As noted, petitioner was sentenced to a term of 60 years to life on his guilty plea 24 and admission of sentencing enhancements on March 18, 1994. Respondent’s Lodged Doc. 1. 25 \\\\\ 26 \\\\\ 2 1 Since petitioner did not appeal,3 his conviction became final 60 days later, on May 17, 1994.4 2 See Cal. R. Ct. 8.308(a) (formerly Cal. R. Ct. 30.1). As respondent observes, petitioner’s 3 conviction became final before April 24, 1996, the effective date of the AEDPA statute of 4 limitations; therefore, petitioner’s federal petition was due one year from the effective date of the 5 implementation of the statutory limitation period, and, absent any applicable tolling, would have 6 been due by April 24, 1997. MTD, p. 4,5 citing, inter alia, Miles v. Prunty, 187 F.3d 1104, 1105 7 (9th Cir. 1999); Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). 8 9 There is no dispute as to when the nine post-conviction state court habeas petitions were filed: the first petition, filed in the Sacramento County Superior Court, was not 10 filed until May 20, 2004, and was denied on June 23, 2004. The second petition was filed in the 11 same court on July 28, 2004, and denied on September 17, 2004; on October 15, 2004, petitioner 12 filed a motion for reconsideration in the Sacramento County Superior Court which was denied on 13 Oct. 27, 2004; petitioner also filed a motion for reconsideration on Nov. 15, 2004, which was 14 denied on the same day. The third petition was filed on Oct. 18, 2004, in the Third District Court 15 of Appeal, and denied on Oct. 21, 2004. The fourth petition was filed in Sacramento County 16 Superior Court on June 6, 2005, and denied on July 25, 2005. The fifth petition was filed on 17 Aug. 22, 2005, in the Third District Court of Appeal, and denied on Aug. 25, 2005. The sixth 18 habeas petition was filed in Sacramento County Superior Court on Nov. 7, 2005, and denied on 19 Dec. 13, 2005. The seventh state court petition was also filed in the Sacramento County Superior 20 21 3 22 4 23 24 25 See second amended petition (SAP), pp. 2, 14. Petitioner appears to have filed a “writ of error coram nobis” before the Sacramento County Superior Court on May 5, 1995, which was returned to him by a letter dated May 16, 1995, evidently signed by Judge Robie, the presiding judge, indicating that any such petition must be submitted on the appropriate form and apparently enclosing such form. Lodged Doc. 30. Should petitioner use the form, according to the letter, his petition would be considered. There is no indication that any such corrected filing was made. 5 26 Respondent actually accords petitioner until April 25, 1997, for filing of the federal petition; however, the applicable date, under Patterson v. Stewart, supra, is April 24, 1997. 3 1 Court on Feb. 8, 2006, and was denied on March 17, 2006; petitioner’s April 11, 2006, motion 2 for reconsideration in the same court was denied on May 4, 2006. The eighth petition was filed 3 in the Third District Court of Appeal on July 31, 2006, and denied on Aug. 3, 2006. The ninth 4 and final petition was filed in the California Supreme Court on Sept. 15, 2006, and denied on 5 March 21, 2007. MTD, pp. 2-3, Lodged Docs. 2-25 ; SAP, pp. 18-19. The court will find that 6 the instant action commenced on June 10, 2007, by application of the mailbox rule,6 even though 7 petitioner’s initial pro se filing was an inapposite motion for relief from judgment. See Order, 8 filed on June 25, 2007 (docket # 3). 9 28 U.S.C. § 2254(d)(2) provides that the time during which a properly filed 10 application for state post-conviction or other collateral review with respect to the pertinent 11 judgment or claim is pending shall not be counted toward any period of limitation under this 12 section. However, as respondent notes (MTD, p. 6), the filing of a state collateral action 13 following expiration of the AEDPA limitations period cannot revive the limitations period or toll 14 it under § 2254(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.2003); Jiminez v. 15 Rice, 276 F.3d 478, 482 (9th Cir.2001). Thus, on the face of it, the instant filing due by April 24, 16 1997, but not filed until June 10, 2007, would appear to be untimely by some ten years. 17 Although unnecessary on this showing, respondent makes an alternate argument as to why the 18 state habeas petitions could not have tolled the AEDPA statute. MTD, p. 5. He contends that the 19 first and sixth through ninth petitions were determined to be untimely in the state courts. The 20 first and ninth petitions were denied by citation to, inter alia, In re Robbins, 18 Cal.4th 770, 780 21 [,77 Cal. Rptr. 153] (1998). Lodged Docs. 3, 25. The sixth and seventh petitions were found 22 untimely filed by the Sacramento County Superior Court. Lodged Docs. 17, 19. Thus, as 23 respondent argues, these petitions, having been expressly found to have been filed untimely, 24 cannot have been “properly filed” pursuant to § 2244(d)(2). MTD, p. 5, citing Pace v. 25 6 26 Pursuant to Houston v. Lack, 487 U.S. 266, 275-76, 108 S. Ct. 2379, 2385 (1988) (pro se prisoner filing is dated from the date prisoner delivers it to prison authorities). 4 1 DiGuglielmo, 544 U.S. 408, 414, 417, 12 S. Ct. 1807, 1812, 1814 (2005) (holding “[w]hen a 2 postconviction petition is untimely under state law, ‘that [is] the end of the matter’ for purposes 3 of § 2244(d)(2),” expressly finding that a state court petition rejected as untimely is not “properly 4 filed” under AEDPA statute tolling provisions). Respondent argues that while the eighth 5 petition was denied without comment or citation (Lodged Doc. 23), it should not be presumed 6 that the prior state court findings of untimeliness were thereby disregarded, citing Ylst v. 7 Nunnemaker, 501 U.S. 797, 803-806, 111 S. Ct. 2590 (1991), for the proposition that the later 8 reviewing courts did not silently disregard the last reasoned opinion that the claim was 9 procedurally defective. Thus, it is appropriate to “look through” unexplained orders “to the last 10 reasoned decision....” Id., at 804, 111 S. Ct. 2590. 11 Respondent is correct on the law in his alternate argument. Pace, supra, at 417, 12 125 S. Ct. at 1814 (state “time limits no matter their form, are ‘filing’ conditions” ); Bonner v. 13 Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (“[b]ecause the California courts dismissed Bonner’s 14 petition as untimely, his petition was not ‘properly filed’ under AEDPA”). However, as noted, it 15 is unnecessary to invoke the argument, given that, on the face of it, petitioner permitted the 16 AEDPA statutory period to expire by more than seven years before even commencing the filing 17 of his state court petitions. 18 Equitable Tolling/Delayed Trigger for Commencemnet of Limitations Period/Actual Innocence 19 Apparently anticipating the arguments for untimeliness, petitioner within the 20 second amended petition, asserts that his petition includes a claim of factual innocence based on 21 newly discovered evidence – a statement by the co-defendant – resulting in a miscarriage of 22 justice and that he has been diligently pursuing state court relief since obtaining the evidence and 23 is thus entitled to equitable tolling from the date of his first state court petition, filed on May 20, 24 2004.7 In addition, petitioner avers that he did not learn of the defect in his sentence related to a 25 7 26 Petitioner here does not appear to expressly seek any equitable tolling for all the time passed until the filing of the initial state court petition. However, in his declaration in opposition 5 1 psychological report by Dr. Shawn Johnston until he learned of his potential life sentence on 2 November 13, 2003. Thus, he claims that the first factual predicate of his claim did not become 3 known to him until November of 2003, the second factual predicate involved obtaining the June 4 13, 2004 statement of culpability and exoneration from the co-defendant; and the third factual 5 predicate, learned some time prior to November 15, 2004, when he filed his motion for 6 reconsideration, was petitioner’s discovery of the sentencing judge’s illegal sentence resulting 7 from the judge’s rejection of Dr. Johnston’s psychological report of petitioner. SAP, 14-15. 8 Therefore, petitioner, in addition to seeking equitable tolling, appears to seek a later trigger date 9 for the commencement of the statutory limitation period under § 2244(d)(1)(D), in asserting that 10 he was unaware of even the first factual predicate of his claims until November of 2003. 11 The court will analyze the above assertions below. However, prior to that 12 analysis, it is necessary to emphasize that not every factual assertion, or dispute, will require an 13 evidentiary hearing. The Supreme Court has recently opined on the standards for granting an 14 evidentiary hearing in Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S. Ct. 1933, 1939-1940 15 (2007), reversing Landrigan v. Schriro, 441 F.3d 638, 650 (9th Cir. 2006) (en banc). Schriro 16 first described the familiar test for granting an evidentiary hearing: that if the factual allegations 17 were to be proved, petitioner would be entitled to relief. See Alberni v. McDaniel, 458 F.3d 860, 18 873 (9th Cir. 2006).8 These standards are easily applied to factual issues involving a dispositive 19 20 21 22 23 24 25 26 to the motion to dismiss (¶ 5), petitioner does state that he should be granted equitable tolling “from and after the date” of what he terms his “first rejected appeal,” a filing made in May of 1995 (see footnote 4 above and discussion below), submitted before the statute of limitations had even commenced. 8 The Ninth Circuit in Landrigan had reduced the test even further – “[w]e conclude Landrigan has alleged facts that, if demonstrated to be true, present a colorable claim that he received ineffective assistance of counsel..... Id at 650 (emphasis added). Thus, district courts were to hold evidentiary hearings not only in cases where the facts, if proven, would entitle the petitioner to relief, but in any case where the petitioner had “surpassed the relatively ‘low bar’ of alleging a colorable claim for relief.” Id. Under such a test, evidentiary hearings would be required in nearly every habeas case presented to federal court in which ineffective assistance or some other extra-record claim was made. 6 1 procedural issue as well. That is, do petitioner’s allegations, if proven, give rise to equitable 2 tolling or a later commencement of the limitations period; if so, petitioner would be entitled to an 3 evidentiary hearing. 4 However, in determining whether relief could be granted, the federal court must 5 apply the AEDPA deferential standards to legal and factual questions necessarily reached by the 6 state courts which might obviate the need for an evidentiary hearing. Schiro, 127 S. Ct. at 1939- 7 40. If the state court had made factual findings on the issue at bar, no evidentiary hearing could 8 be held unless petitioner’s proffer would constitute clear and convincing evidence. Importantly, 9 if the record refuted the applicant’s allegations, i.e., petitioner was making allegations at odds 10 with the established facts of the record, he would not be permitted an evidentiary hearing unless 11 such new facts would clearly and convincingly rebut the record. Generally phrased allegations, 12 or the failure to submit a proffer of available, specific proof will not clearly and convincingly 13 rebut the record. Of course, if a lower state court is the court which issued a reasoned decision, 14 the federal courts look through silent denials and assume the reasoning of the lower court is the 15 reasoning of all courts. Medley v. Runnels, 506 F.3d 857, 862-863 (9th Cir. 2007), citing Ylst v. 16 Nunnemaker, 501 U.S. 804-06, 111 S. Ct. 2590 (1991). 17 18 19 20 The following discussion demonstrates that the factual record in this case clearly refutes petitioner’s latter day allegations, and an evidentiary hearing is not warranted. Sentencing Allegation The writ of error coram nobis filed by petitioner, on May 5, 1995, that was 21 evidently rejected pending his use of the appropriate form (see footnote 3), clearly states that 22 petitioner was sentenced to two consecutive terms of 25 years to life, enhanced by 10 years, “the 23 aggregate term being 60 years to life affixed.” Lodged Doc. 30 (p. 2). In his opposition, 24 petitioner declares that he should be granted equitable tolling from and after the date of this 25 “rejected appeal,” which “was attempted to be filed before the statute of limitations even had 26 begun to run” even though “he had nothing to do with the actual preparation” of the document, 7 1 only signing it after a jailhouse lawyer had prepared it.9 Petitioner’s Declaration in Opp., ¶ 5. At 2 oral argument, petitioner’s counsel again maintained the 1995 petition was prepared by a 3 jailhouse lawyer and petitioner forgot it had ever been done. Moreover, petitioner maintains that 4 he was “only 18 at the time and was suffering from untreated schizophrenia, was in shock from 5 [his] imprisonment and not fully understanding what had happened to [him].”10 Ptnr’s Dec. in 6 Opp., ¶ 5. However, petitioner had multiple opportunities both before and after May of 1995 and 7 prior to May of 2004, when he filed his first state court petition, to appreciate the magnitude of 8 his sentence, beginning with the occasion on which he entered his change of plea on December 9, 9 1993 (Lodged Doc. 32, p. 5: 11-21),11 and later at the time of his judgment and sentencing on 10 March 18, 1994, before a different judge (Lodged Doc. 33, pp. 23-26).12 As the undersigned 11 noted at the hearing on this motion, the sentencing judge was vehement in expressing his desire 12 for the sentence to be lengthy. Moreover, the record indicates that the judge told petitioner 13 explicitly when sentencing him: 14 It’s my desire that by the time you are eligible for parole I will be nothing more than what I hope is a warm feeling in the hearts and minds of my children and grandchildren. 15 16 Lodged Doc. 33, p. 24:23-26. 17 18 9 In May of 1995, of course, the AEDPA had not even been implemented. Assuming his birthdate, August 18, 1974, has been recorded correctly in the records, petitioner was 18 at the time of his arrest on June 3, 1993; he was 19 when he entered his plea on Dec. 9, 1993, and, of course, when he was sentenced on March 18, 1994; at the time of the coram nobis petition filing, on May 5, 1995, therefore, petitioner was not 18, but would have been nearing his 21st birthday. Lodged Docs. 1, 32. 11 On the date that he changed his plea, he was told by the judge who accepted the plea: “The potential sentence for each of these murders is twenty-five years to life in prison. The potential prison term for the enhancement of personally using a firearm on each of the murder charges is an additional five years consecutive. You are receiving no bargain with regards to this plea. You’re potentially facing fifty years to life in prison, plus an additional ten years for the arming allegations.” Lodged Doc. 32, p. 5: 11-19. Petitioner, when asked if he understood the potential sentence he faced, replied: “Yes, I do.” Id., p. 5: 20-21. 12 Petitioner’s sentence was explicated in detail and summarized as “[t]he aggregate term in state prison in your case, the determinant sentence of ten years in prison to be followed by two consecutive twenty-five years to life sentences.” Lodged Doc. 33, p. 24:19-22. 10 19 20 21 22 23 24 25 26 8 1 Should that sentiment have left even the slightest doubt as to the judge’s intent in 2 imposing petitioner’s sentence, it would have been removed by his conclusion at the sentencing 3 hearing for both petitioner and his co-defendant: 4 If you are ever placed on parole on this case it will be for a period of life. And if you violate any provision of your parole, you could be returned back to prison for life. 5 6 However, it’s my desire that you never be granted parole. I believe you should spend the rest of your natural lives in prison and die in prison. 7 8 9 Id., at 26:4-9. Petitioner was a high school graduate, as the court noted at the hearing. Lodged 10 Doc 27. In addition to that, there is ample evidence in the record submitted by respondent to 11 demonstrate that legal status summary sheets were prepared from the inception of his 12 imprisonment, indicating that he was sentenced to a term of 60 years to life, despite petitioner’s 13 representation that he cannot recall any intake report dated April 28, 1994, or any intake audits 14 during prison transfers where his life sentence was discussed, maintaining specifically that he 15 cannot recall ever having seen the May 16, 1994, Legal Status Summary Report, setting forth his 16 life sentence. Lodged Docs. 28, 29, 35; petitioner’s Declaration in Opp., ¶¶ 7-8. Even if, as his 17 counsel maintained at the hearing, petitioner believed his sentence translated to 50 years at hard 18 labor, or in the alternative, as petitioner states in a declaration appended to the opposition (¶ 9), 19 that he believed that so long as he “had no other problems” in prison, his 60-year sentence would 20 be halved by good time credits, there is simply no realistic possibility that petitioner could have 21 failed to understand, virtually from the outset, the sentence he had received absent a willful 22 decision simply not to acknowledge reality or evidence of a completely delusional state of mind, 23 for which evidence is lacking. The record also includes a copy of a letter, dated April 10, 1995, 24 apparently from petitioner to his defense counsel, wherein petitioner states, in part, the following: 25 The goal of my plea was for the reciprocal benefit of 60 years, and not to the false enchantment [sic] of two terms of twenty-five years to life....The sentence rendered 2 (two) life terms which I was 26 9 1 2 unaware of before the plea of guilty. Lodged Doc. 26. 3 This appears to be a clear indication that petitioner was fully cognizant of the 4 sentence imposed upon him by no later than spring of 1995.13 In order to avail himself of the 5 commencement date of § 2244(d)(1)(D), petitioner must have exercised due diligence in 6 determining the factual predicate of his claim; a claim that petitioner only discovered the true 7 significance of his 1994 sentence in November of 2003, while conducting his own research in a 8 prison law library does not demonstrate such due diligence. The superior court’s assertion made 9 on June 23, 2004, in denying the May 20, 2004, petition wherein petitioner seeks to convince that 10 court that he had only just discovered that he had received a life sentence in 1994 based on a 11 November 13, 2003, prison document, is self-evident; noting the document, the superior court 12 found that it “could not have been the first notice petitioner ever received that he is serving a life 13 term.” Lodged Doc. 3. Any other conclusion defies logic. To the extent that any of petitioner’s 14 claims rest on this court’s finding timeliness due to his belated discovery of the sentence imposed 15 upon him, delayed by almost ten years after the sentence was imposed, such claims cannot be 16 found timely under § 2244(d)(1)(D), nor is any showing of equitable tolling thereby warranted. 17 13 18 19 20 21 22 23 24 25 26 His counsel, in a response dated April 19, 1995, states that he has received petitioner’s letter and avers, in relevant part: “I want to advise you that I will not file a declaration that you were unaware of the consequences of your plea of guilty ....because it is my personal recollection that you were at all times aware that the consequences of such plea provided a sentence of 60 years to life in prison with the possibility of parole, and that a mandatory minimum sentence of 38 years, 4 months would have to be served before you first became eligible for parole.” This recollection is reinforced by a review of my file in which I retained notes of jail conferences with you on July 29, 1993, September 14, 1993, and December 1, 1993. All of the notes set out in specific detail the fact that you were aware of the sentence you would receive from the court. As charged by the Sacramento County District Attorney, you were convictable of 2 counts of first degree murder with the personal use of a firearm, and could have been sentenced to either life in prison without the possibility of parole, or death, after jury trial. The plea bargain entered on your behalf clearly avoided the death sentence or life sentence without the possibility of parole and gave you parole possibility by the time you reach your mid to late 50’s.” His counsel adds: “Further, the evidence in this case was overwhelming and the most compelling evidence was your own confession of these crimes to 5 or 6 of your closest friends.” Lodged Doc. 31. 10 1 In Calderon v. U.S. District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), 2 overruled on other grounds, Calderon v. U.S. District Court for Cent. Dist. of CA. (Kelly), 163 3 F.3d 530 (9th Cir. 1998) (en banc), itself abrogated by Woodford v. Garceau, 538 U.S.202, 123 4 S. Ct. 1398 (2003), the Ninth Circuit found that the statute of limitations could be equitably 5 tolled if extraordinary circumstances beyond a prisoner’s control made it impossible to file the 6 petition on time. “In addition, ‘[w]hen external forces, rather than a petitioner’s lack of 7 diligence, account for the failure to file a timely claim, equitable tolling may be appropriate.’” 8 Lott v. Mueller, 304 F.3d 918, 922 (9th Cir. 2002), quoting Miles v. Prunty, 187 F.3d 1104, 1107 9 (9th Cir. 1999). 10 Equitable tolling will not be available in most cases because tolling should only 11 be granted if extraordinary circumstances beyond a prisoner’s control make it impossible for him 12 to file a petition on time. Beeler, 128 F.3d at 1288-89. As held in Beeler, “[w]e have no doubt 13 that district judges will take seriously Congress’s desire to accelerate the federal habeas process, 14 and will only authorize extensions when this high hurdle is surmounted.” 128 F.3d at 1289. 15 “Mere excusable neglect” is insufficient as an extraordinary circumstance. Miller v. New Jersey 16 Dept. of Corrections, 145 F.3d 616, 619 (3rd Cir. 1998). Moreover, ignorance of the law does 17 not constitute such extraordinary circumstances. See Hughes v. Idaho State Bd. of Corrections, 18 800 F.2d 905, 909 (9th Cir. 1986). 19 In the Calderon (Beeler) case, the Court of Appeals held that the district court 20 properly found equitable tolling to allow Beeler more time to file his petition. Beeler’s lead 21 counsel withdrew after accepting employment in another state, and much of the work he left 22 behind was not usable by replacement counsel – a turn of events over which the court found 23 Beeler had no control. The Court of Appeals held that the district court properly found these 24 were “extraordinary circumstances” sufficient to toll the statute of limitations.14 The Ninth 25 14 26 See also Baskin v. United States, 998 F. Supp. 188 (D. Conn. 1998), wherein the court applied equitable tolling where petitioner’s attorney failed to notify him of the denial of a petition 11 1 Circuit also found extraordinary circumstances in Calderon v. U.S. Dist. Ct. (Kelly), supra, 163 2 F.3d 530. The three reasons given which independently justified tolling were: a district court 3 stay which prevented petitioner’s counsel from filing a habeas petition, mental incompetency 4 until a reasonable time after the court makes a competency determination, and the fact that 5 petitioner did at one time have timely habeas proceedings pending which were mistakenly 6 dismissed, not as a result of any doing by petitioner. Id. at 541-42. See also Corjasso v. Ayers, 7 278 F.3d 874 (9th Cir. 2002) (clerk’s unjustified rejection of a petition justified partial tolling); 8 Miles v. Prunty, 187 F.3d at 1107 (delay by prison in withdrawing funds from prisoner’s trust 9 account, preparing and mailing filing fee were circumstances beyond his control, qualifying him 10 for equitable tolling); Stillman v. Lamarque, 319 F.3d 1199, 1202-03 (9th Cir. 2003) (equitable 11 tolling permitted where litigation coordinator broke a promise to petitioner’s counsel to return a 12 signed petition for timely filing); Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003) (sufficiently 13 egregious misconduct by counsel, such as wholly deficient performance, may justify equitable 14 tolling). 15 “Generally, a litigant seeking equitable tolling bears the burden of establishing 16 two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary 17 circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814; 18 Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (a habeas petitioner bears the burden of 19 proving that equitable tolling should apply to avoid dismissal of an untimely petition). 20 “Equitable tolling is unavailable in most cases,” and is only appropriate “if extraordinary 21 circumstances beyond a prisoner’s control make it impossible to file a petition on time.” 22 Miranda, supra, at 1066 (internal quotations/citations omitted [emphasis added in Miranda]). A 23 petitioner must reach a “very high” threshold “to trigger equitable tolling [under AEDPA]...lest 24 the exceptions swallow the rule.” Id. 25 26 for certiorari until thirteen months after the denial was entered. 12 1 Moreover, as noted above, ignorance of the law has not been found to warrant 2 equitable tolling. Hughes v. Idaho State Bd. of Corrections, supra, at 909. In addition, in U.S. v. 3 Van Poyck, 980 F. Supp. 1108, 1110-11(C.D. Cal. 1997), the court found that a petitioner’s 4 circumstances were not extraordinary in the following circumstances: inability to obtain 5 transcripts from court reporters, and general prison lockdowns preventing the prisoner’s access to 6 the library and a typewriter which were necessary to his motion. See also Tacho v. Martinez, 862 7 F.2d 1376, 1381 (9th Cir. 1988) (reliance on incompetence of jailhouse lawyer not sufficient to 8 justify cause to excuse procedural default); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) 9 (prisoner’s unfamiliarity of law did not toll statute); Eisermann v. Penarosa, 33 F.Supp.2d 1269, 10 1273 (D.Haw. 1999) (lack of legal expertise does not qualify prisoner for equitable tolling); 11 Henderson v. Johnson, 1 F.Supp.2d 650, 656 (N.D. Tex. 1998) (same); Fadayiro v. United States, 12 30 F.Supp.2d 772, 779-80 (D.N.J. 1998) (delay in receipt of transcripts does not justify equitable 13 tolling). Nor has the undersigned ever been persuaded that a petitioner’s reliance on a jailhouse 14 lawyer can have been contemplated as coming within the holding of Spitsyn v. Moore, supra. 15 Petitioner’s representation that he was not really aware of the actual length of his 16 sentence until he had spent a decade in prison simply does not warrant equitable tolling, given, 17 inter alia, the fact that he had pled guilty to two first degree murders, his presence at his 18 sentencing, the legal status summary sheets prepared, the language in the 1995 coram nobis 19 petition he attempted to file. The record clearly refutes the latter day allegations. Moreover, the 20 allegations themselves are insufficient. In simply asserting that he did not understand his own 21 abortive coram nobis petition, or that he so belatedly discovered the significance of his sentence, 22 petitioner makes a deficient showing to prove entitlement to equitable tolling. These do not rise 23 to the level of being “extraordinary circumstances” beyond petitioner’s control in an equitable 24 tolling context, but appear, instead, to be attributable, at most, to a lack of diligence. See, e.g., 25 Lott v. Mueller, supra, at 922. 26 \\\\\ 13 1 Actually Innocent of First Degree Murder 2 Nor is petitioner entitled either to the later trigger date of § 2244(d)(1)(D), or to 3 equitable tolling, for what petitioner characterizes as the third factual predicate for his claims, 4 relating to the sentencing judge’s rejection of Dr. Johnston’s psychological report of petitioner, 5 only learned at some vague period prior to November 15, 2004, according to petitioner. It is 6 plain that at the judgment and sentencing hearing, at which petitioner was present, the judge 7 discusses Dr. Johnston’s psychological evaluation, the testing administered upon petitioner, 8 relates Dr. Johnston’s conclusion and the judge’s own rejection of that conclusion.15 9 Petitioner’s putative schizophrenia, while relied on as part of an underlying claim, 10 does not appear to be an argument for equitable tolling on which petitioner significantly relies, 11 although petitioner does contend that Dr. Johnston prognosticated that petitioner may well suffer 12 from paranoid schizophrenia and that while in prison petitioner has received no mental health 13 treatment. Of course, this is a double-edged sword: while petitioner argues that he has not 14 received the mental health treatment he needs based on Dr. Johnston’s analysis, respondent 15 maintains this simply signifies that prison officials have determined that petitioner is not in need 16 of any such treatment program. Petitioner points out that the only prison mental health treatment 17 he has received has come in the form of group meetings which have resulted from his request to 18 be enrolled in the CCCMS16 program while in prison. Ptn. Dec. in Opp., ¶ 4. Petitioner, arguing 19 the merits of his claim that the plea was inappropriately accepted because the only professional 20 opinion was that of Dr. Johnston opining petitioner’s alleged paranoid schizophrenia with no 21 professional opinion in opposition before the court, appears to conflate the requisite state of 22 mental health for petitioner’s plea to be accepted with that of competency to stand trial. Opp., 23 pp. 2, 11-12. In support of his claim that the trial court should not have accepted petitioner’s 24 25 26 15 The court notes that neither party provides Dr. Johnston’s actual psychological evaluation or points to where it might exist in the record before this court. 16 Correctional Clinical Case Management Services. 14 1 plea, petitioner cites People v. Harvey, 151 Cal. App.3d 660, 198 Cal. Rptr. 858 (1984), wherein 2 the state appellate court found it to be an abuse of discretion for the trial court to deny the 3 defendant’s motion to withdraw the guilty plea where the defendant had not been advised by her 4 counsel before entering the plea that a psychiatrist’s professional opinion was that defendant was 5 not mentally capable of “harboring malice, premeditating or deliberating at the time of the 6 killing,” a report of which the defendant was evidently unaware until after her sentence and 7 confinement. People v. Harvey, supra, 151 Cal. App.3d at 665-666. Petitioner particularly 8 emphasizes the following statement: 9 10 11 Even assuming defendant did have knowledge of the consequences of her plea, it is clear from the record that she did not have knowledge of a defense, not only potentially meritorious, but absolutely critical to her case. [] Thus we conclude that, under all the circumstances of this case, the trial court abused its discretion in denying defendant’s motion to withdraw her guilty plea. 12 13 Opp., pp. 14-15, quoting People v. Harvey, supra, 151 Cal. App.3d at 670-671. 14 The case appears to be inapposite insofar as a state court abuse of discretion, on the face of it, 15 would not appear to implicate a federal constitutional guarantee, nor is the context analagous, 16 where the defendant in Harvey evidently made a motion to withdraw the plea, something that did 17 not occur here, and timeliness was not at issue. Nor does the report by Dr. Johnston, as the court 18 stated, as pointedly support the premise as does that of the psychiatrist in Harvey, that petitioner 19 did not have the psychological capacity to commit the murder offense with the requisite intent, 20 where here, according to the sentencing judge, Johnston’s opinion as to petitioner was that the 21 “commission of the instant offense was premeditated but not deliberated,” (Lodged Doc. 1, p. 22 22), a parsing of the required elements so labored as to render its meaning obscure to the point of 23 meaninglessness. But petitioner’s fundamental difficulty here is that he seeks to reach the merits 24 of his petition without ever having demonstrated a sufficient basis for this court to consider the 25 petition timely. That is, even if petitioner had a colorable ground with regard to either a claim 26 that the court should have obtained a professional, countervailing opinion to that of Dr. Johnston 15 1 or that counsel for petitioner was ineffective in not fully informing petitioner of the contents of 2 Dr. Johnston’s report, petitioner offers far too little by way of support as to why the court should 3 find petitioner timely in raising these issues for the first time some ten years beyond the date of 4 acceptance of the plea and entry of judgment, particularly as petitioner admits that he knew 5 “prior to sentencing,” that the psychologist’s report had “included the opinion that I was 6 schizophrenic and as a result incapable of deliberation,” but that he did not understand the legal 7 significance of this opinion, nor did his defense attorney explain it to him. Ptnr’s Dec. in Opp., ¶ 8 3. To trigger the later date, it is not necessary that petitioner understand the legal significance, 9 but only that he is aware of the factual predicate of any claim. Nor does petitioner make the 10 showing required to demonstrate the impediment to earlier filing or the diligence required to 11 show his is a case of an extraordinary circumstance entitling him to equitable tolling. “Where a 12 habeas petitioner’s mental incompetency in fact caused him to fail to meet his AEDPA filing 13 deadline, his delay was caused by an ‘extraordinary circumstance beyond [his] control,’ and the 14 deadline should be equitably tolled.” Laws v. LaMarque, 351 F.3d 919, 923 (9th Cir. 2003); see 15 also Calderon v. U.S. Dist. Court for Cent. Dist. Of Cal. (Kelly), 163 F.3d 530, 541 (9th Cir. 16 1998) (mental incompetency considered an extraordinary circumstance beyond the prisoner’s 17 control) (overruled on other grounds by Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398 18 (2003)). A petitioner’s mental illness tolls the limitations period only if “the illness in fact 19 prevents the sufferer from managing his affairs and thus from understanding his legal rights and 20 acting upon them.” Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996). 21 The Ninth Circuit has noted that “[d]etermining whether equitable tolling is 22 necessary is a ‘fact-specific inquiry,’” Spitsyn, 345 F.3d at 799, but petitioner provides nothing 23 by way of any affidavit by a medical professional or any medical record to support any claim that 24 he was impeded by his mental health condition from filing his petition much earlier. The only 25 reference to mental health issues is with respect to the claim that the trial court violated due 26 process in accepting the plea to first degree murder while rejecting the conclusions of the only 16 1 psychological evaluation of petitioner in the record without ordering a further or independent 2 evaluation and with regard to the IAC claim against trial counsel for failing to object. At the 3 sentencing hearing, the judge references Dr. Shawn Johnston’s twelve-page psychological 4 evaluation, dated November 8, 1993,17 and indicates that it was received and considered, noting 5 that in the Rorshach Ink Blot Test, the doctor concluded that either petitioner (then defendant) 6 “was being very defensive or refusing to cooperate with the test, or that possibly the test results 7 show some type of emotional disturbance” and that in the Minnesota Multi-Phasic Personality 8 Inventory (MMPI), he came to two different conclusions, “that the tests either show that he 9 attempted to feign some type of an illness, was malingering, or that he suffers from a 10 schizophrenia or mania,” opting for and adopting the latter conclusion and determining that 11 petitioner “may not have been able to deliberate the commission of the instant offense,” finding 12 somehow that petitioner had “premeditated but not deliberated” the offense. Lodged Doc. 1, pp. 13 3, 17, 22. The sentencing judge “strongly disagree[s]” with that conclusion which he 14 characterizes as speculative at best based on the tests given, finding “ample evidence in the 15 record to show premeditation, deliberation, malice aforethought on the part of both defendants.” 16 Lodged Doc. 1, pp. 22-23. Both petitioner and respondent argue for their separate positions, as 17 noted above, that petitioner has never received mental health treatment based on the diagnosis of 18 schizophrenia since being incarcerated, each seeking to show that petitioner, who has indicated 19 that he signed himself up for CCCMS, has either never received the treatment he needs or has 20 never been diagnosed as schizophrenic in prison, respectively. Respondent’s inclusion of 21 petitioner’s prison work history undermines any representation that mental health issues may 22 have impeded petitioner. In 1996, petitioner was assigned work as a dining porter; in 1997, 23 petitioner was assigned work as a photographer/camera man; he progressed from C’s to B’s and 24 A’s in education progress reports in quarters from 2000-2002, in vocational, mostly electronic- 25 17 26 As noted previously, neither petitioner nor respondent appears to have identified the location of Dr. Johnston’s report itself in the record, or otherwise to have separately submitted it. 17 1 related technical courses. Lodged Doc. 34. 2 Petitioner is not entitled to equitable tolling, or a later commencement of the 3 limitations period, for the purpose of attempting to prove that he is actually innocent of first 4 degree murder. He simply had early access to the information he would now posit as proof of his 5 innocence, and no justifiable reason for not asserting this claim in a timely fashion. To the extent 6 that petitioner contends that a claim of actual innocence, even if partial, will, on its own, always 7 trump the AEDPA statute of limitations, that claim is rejected for the reasons set forth below. 8 9 Actually Innocent of Murder Per Se Petitioner relies on Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995), although 10 he acknowledges that that case involved a jury verdict as opposed to a guilty plea. Petitioner 11 maintains that he is actually innocent of the first-degree murders to which he entered a plea based 12 on the co-defendant’s belated statement, following his (the co-defendant’s) religious conversion, 13 that it was he who was responsible for shooting the victims. The standard under Schlup, at 329, 14 115 S. Ct. at 868, is not met by “a showing that a reasonable doubt exists in the light of the new 15 evidence, but rather that no reasonable juror would have found the defendant guilty.” Petitioner 16 maintains that he should proceed under Schlup because he has been subjected to constitutional 17 violations that have resulted in his conviction even though he is actually innocent, at least of first 18 degree murder, and that in light of the new evidence no reasonable juror would have convicted 19 him. Opp., pp. 1-2. Of course, as noted, in this instance petitioner essentially convicted himself. 20 Respondent argues that the gateway provided by Schlup is a very narrow 21 procedural one not applicable in the AEDPA statute of limitations context. Reply, p. 4. Schlup, 22 supra, at 315, 115 S. Ct. 861, a capital case, involved the applicable standard for overcoming a 23 procedural bar, the claim of actual innocence itself not being a constitutional claim, but rather “a 24 gateway through which a habeas petitioner must pass to have his otherwise barred constitutional 25 claim considered on the merits [internal quotation omitted].” Respondent is correct that neither 26 the Supreme Court nor the Ninth Circuit has yet reached the conclusion that the strenuous Schlup 18 1 “fundamental miscarriage of justice standard” is adequate to override or even to be applied to the 2 statute of limitations set forth in the AEDPA statute. Reply, pp. 3-4, citing Majoy v. Roe, 296 3 F.3d 770, 775-76 (9th Cir. 2002). 4 Majoy does not answer the question, should petitioner fall within that “narrow 5 class implicating a fundamental miscarriage of justice[,] ....whether surviving the rigors of this 6 gateway has the consequence of overriding AEDPA’s one-year statute of limitation....” Majoy 7 v. Roe, 296 F.3d at 776. Indeed, the Majoy court expressly found that that question had not been 8 reached either in the Ninth Circuit or by the U.S. Supreme Court, id., and that it was premature 9 for the Majoy court to decide the legal issue unless and until the district court found that its 10 petitioner could actually pass through the Schlup gateway. The district court was to have first 11 crack at the legal issue as well. Thus, the undersigned finds this case in precisely the same 12 posture as Majoy at the time of remand.18 13 The U.S. Supreme Court has yet to finally determine that actual innocence itself 14 implicates a federal constitutional right entitling a petitioner to release upon proof of same. See, 15 District Attorney’s Office for Third Judicial District v. Osborne, ___ U.S.___, 129 S. Ct. 2308, 16 2321-2322 (Jun. 18, 2009), where the high court notes that it has “assumed, arguendo, that it 17 exists while also noting the difficult questions such a right would pose and the high standard any 18 claimant would have to meet,” citing, inter alia, House v. Bell, 547 U.S. [518,] 554-555, 126 S. 19 Ct. 2064 [, 2086-87 (2006)]; Herrera v. Collins, 506 U.S. [390,] 398-417, 113 S. Ct. 853[, 869- 20 70) (1993)]. The Ninth Circuit has “noted, however, a majority of the Justices in Herrera 21 22 would have supported a claim of free-standing actual innocence.” Jackson v. Calderon, 211 F.3d 23 1148, 1165 (9th Cir. 2000), citing Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997), cert. 24 denied, 523 U.S. 1133, 118 S. Ct. 1827 [](1998). In “asserting a freestanding innocence 25 26 18 The undersigned is unaware of any published opinion after remand. 19 1 claim....,” a petitioner “must go beyond demonstrating doubt about his guilt, and must 2 affirmatively prove that he is probably innocent.” Jackson, supra, at 1165, quoting Carriger, at 3 476. Of course, all of these were cases wherein the petitioner had been tried and convicted and, 4 in all but one, sentenced to death,19 not as here, a petitioner who had pled guilty (with the 5 exception of District Attorney’s Office, supra, a § 1983 action wherein it was found that an 6 individual, duly convicted at trial with his conviction and sentenced affirmed on appeal, did not 7 have a federal substantive due process right to have state DNA evidence tested to prove his 8 innocence).20 9 This court has at times noted in the context of the equitable tolling inquiry that the 10 limitations period may be equitably tolled, or simply not applied, in a situation where the habeas 11 petitioner makes a colorable demonstration of actual innocence. See Miller v. Marr, 141 F.3d 12 976, 978 (10th Cir. 1998) (intimating that the AEDPA limitations period may be unconstitutional 13 if a claim of actual innocence were at stake); United States v. Zuno-Acre, 25 F. Supp. 2d 1087, 14 1099-1100 (C.D.Cal. 1998) (holding that there is a “miscarriage of justice gateway” to non- 15 application of the AEDPA limitations period). Some courts have suggested that dismissal of 16 actual or legal innocence claims on grounds that they are barred by the statute of limitations 17 violates the Suspension Clause (U.S. Const. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas 18 Corpus may not be suspended, unless when in Case of Rebellion or Invasion the public Safety 19 may require it.”)). See Rodriguez v. Artuz, 990 F.Supp. 275, 283 (S.D.N.Y. 1998), affirmed, 161 20 F.3d 763 (2nd Cir. 1998) (“where no claim of actual or legal innocence was raised, as long as the 21 procedural limits on habeas leave petitioners with some reasonable opportunity to have their 22 claims heard on the merits...[there is no] suspension of the writ.”) See also Johnson v. Knowles, 23 541 F.3d 933 (9th Cir. 2008), where the parties assumed the applicability of Schlup to a statute of 24 19 25 Majoy was sentenced to life without parole, not death. Majoy, supra. 20 26 Osborne had confessed to some of his crimes in an application for parole and repeated his confession to the parole board. Id., at 2314-2315. 20 1 limitations issue, and so therefore did the court. 2 3 However, upon analysis of the AEDPA statute itself, the undersigned concludes that actual innocence does not provide an exemption to bringing claims in a diligent fashion. 4 The First Circuit has opined, in David v. Hall, 318 F.3d 343, 347 (1st Cir. 2003): 5 Nothing is changed here by David’s claim of actual innocence, a claim itself derived from his mistaken-colloquy argument. In general, defendants who may be innocent are constrained by the same explicit statutory or rule-based deadlines as those against whom the evidence is overwhelming: pre-trial motions must be filed on time, timely appeals must be lodged, and habeas claims must conform to AEDPA. In particular, the statutory one-year limit on filing initial habeas petitions is not mitigated by any statutory exception for actual innocence even though Congress clearly knew how to provide such an escape hatch. 6 7 8 9 10 11 The court is persuaded by the David rationale that claims of actual innocence are 12 required to be brought diligently the same as any other claim. See also, Araujo v. Chandler, 435 13 F.3d 678, 681 (7th Cir. 2005) (finding “actual innocence” claim must fit within the provisions of 14 § 2244(d)(1)(D) to be timely and that petitioner did not exercise due diligence in bringing facts of 15 claim to federal court)21; Flanders v. Graves, 299 F.3d 974, 978 (8th Cir. 2002) (while not holding 16 that actual innocence is irrelevant in the equitable tolling context, finding that a petitioner would, 17 at a minimum, have to show diligence); Cousin v. Jenning, 310 F.3d 843, 849 (5th Cir. 2002) 18 (finding no explicit exemption for actual innocence claim under § 2244(d) and such claims 19 relevant to timeliness only if they warrant equitable tolling of the limitations period); Felder v. 20 Johnson, 204 F.3d 168, 171 (5th Cir. 2000) (“actual innocence claim ...does not constitute a ‘rare 21 and exceptional circumstance....’”). 22 Indeed, the AEDPA statute of limitations does not even commence to run until the 23 factual predicate for the claim could have become known with reasonable diligence. 28 U.S.C. § 24 2244(d)(1)(D). It becomes absurd to think that one who knows, or should know, of a claim for 25 21 26 The Seventh Circuit has also determined that “actual innocence is not a freestanding exception to the statute.” Araujo, supra, at 682. 21 1 actual innocence may pocket the claim, and only spring it years or decades after the fact. In 2 essence, a suspension or ignoring of the AEDPA statute of limitations is not necessary for claims 3 of actual innocence. If petitioner had knowledge of the factual predicate of his claim of actual 4 innocence years ago, as he must have if it is true, or should have had such knowledge years ago, 5 his lack of diligence precludes him (and should preclude him) from proceeding at present. 6 Congress anticipated newly discovered factual predicates, including those for actual innocence 7 claims, and provided for such in the AEDPA limitations statute itself. 8 Thus, in a situation, for example, where DNA evidence is newly discovered, or a 9 new testing procedure is discovered, which was not available at the time of trial, or even initial 10 post-trial proceedings, and which would prove actual innocence, the AEDPA limitations period 11 would not start to run until the discovery of such evidence or procedure. But there is no reason 12 to allow a petitioner to sit on such evidence after discovery until such time as petitioner feels the 13 time is right to bring it. 14 In reviewing the facts here, petitioner must have been aware, if it is true, that he 15 knew all along that he had confessed to a crime he did not commit, and that his guilty plea was 16 erroneous, petitioner going so far as to inform the judge on guilty plea colloquy that he indeed 17 committed the crime. Yet, petitioner did nothing for years to rectify the matter. Petitioner’s co- 18 defendant’s belated “I’ll now take the blame” declaration, should have been actively sought long 19 before the time it just happened to come into existence because of a purported religious impetus. 20 The foregoing is not a situation where the presently asserted factual predicate was unknown to 21 petitioner, or legally unavailable, at the time he inculpated himself. 22 Petitioner claims that he was likely suffering from schizophrenia at the time of the 23 shootings, per the “uncontroverted opinion” of Dr. Johnston, which “would be a likely 24 explanation for the misinformation that appears to have been spread regarding the shooting in the 25 immediate hours and days thereafter....” Supp. Resp. in Opp., p. 3. That is, petitioner attributes 26 most of the misinformation as having its primary source in the co-defendant and seeks to ascribe 22 1 petitioner’s own self-incrimination to the alleged schizophrenia from which petitioner may have 2 suffered at or around that time. Even if colorable, and the state trial court and this court has 3 found it not to be so, none of this explains petitioner’s subsequent extended dilatoriness. 4 Petitioner claims that he moved forward diligently with his claim of actual 5 innocence once he obtained his co-defendant’s “confession.” Opp., p. 18. He also posits that it 6 was only upon a chance meeting with his co-defendant that he learned of his conversion to Islam 7 and that therefore a truthful statement could be obtained, something he could not otherwise have 8 known. Ptnr’s Dec. in Opp., ¶ 10. Further, he maintains that he could not simply contact another 9 inmate without institutional approval, and that contacting a former co-defendant would be even 10 more problematic. Id. Respondent submits a copy of the CDCR policy regarding 11 correspondence between inmates. Lodged Doc. 36. To have initiated the process might have 12 been an onerous one for petitioner, but despite his avowed innocence, petitioner does not indicate 13 that he ever explored the process before his fortuitous meeting with Inmate Mann. If petitioner 14 was aware, as he must have been if it is true, that he did not know his co-defendant had a gun on 15 the crucial night and that he (petitioner) was not the gunman in the fatal shootings, he was also 16 aware of this, not only as he spoke to friends prior to his arrest, entered his plea, and had his 17 judgment and sentenced imposed, and was no less aware of it as he languished in prison for some 18 ten years before running into the former co-defendant. Without the declaration from his co- 19 defendant, petitioner has a point that he is unlikely, certainly given all the circumstances, that he 20 could have made any colorable showing of innocence of first degree murder. Petitioner’s counsel 21 argued at the hearing that even respondent has conceded that (see Reply, p. 5), under Sawyer v. 22 Whitley, 505 U.S. 333, 340, 112 S. Ct. 2514 (1992),22 a credible declaration of guilt made by 23 22 24 25 26 This case involved an inmate under sentence of death who brought a successive petition alleging actual innocence, the high court noting a prior holding that even if a state prisoner could not meet the cause and prejudice standard, the court could hear the merits of successive claims if the failure to do so “would constitute a ‘miscarriage of justice,’” but that the fundamental miscarriage of justice exception has a “narrow scope.” Id., at 339-340, 112 S. Ct. at 2518-19. The Supreme Court held that petitioner therein “has failed to show by clear and convincing 23 1 another may establish factual innocence. Even assuming the declaration that petitioner’s co- 2 defendant has belatedly provided petitioner has any credibility, however, petitioner cannot 3 virtually abandon any claim of actual innocence for a decade without any evidence of any effort 4 in the record to seek to establish it. 5 Even if one were to impose the Schlup paradigm on the instant facts, permitting 6 petitioner to raise his actual innocence whenever he felt it advantageous to do so, a requirement 7 of the paradigm is that petitioner must establish that he is in fact innocent to overcome the 8 limitations bar. See Johnson v. Knowles, supra, denying the attempt to overcome the limitations 9 bar because petitioner did not prove his actual innocence. 10 In initially denying petitioner’s claim in a 2004 petition that newly discovered 11 evidence showed a miscarriage of justice, the Sacramento Superior Court stated, in relevant part: 12 Petitioner claims that his co-defendant Phillip Mann absolved Petitioner of any culpability in the double homicide. The alleged newly discovered evidence is a statement (not signed under penalty of perjury) of Phillip Mann stating the Petitioner was not involved in the double homicide and that detectives coerced statements from Mann wrongfully incriminating Petitioner. First, the statement was not made under penalty of perjury and is therefore inadmissible as well as unreliable. Second, Petitioner pled guilty in both counts, admitting all of the elements of the offenses, so Mann’s statement does not point unerringly to innocence of [sic] reduced culpability for Petitioner. Therefore, petitioner has not shown that there is newly discovered evidence supporting habeas relief. Lodged Doc. 5. 13 14 15 16 17 18 19 20 21 22 23 Upon petitioner’s motion for reconsideration after evidently making an effort to submit the statement by Mann under penalty of perjury, the court concluded: The submitted documents purport to make the statement under penalty of perjury. Regardless of whether or not the affidavit is admissible, the petitioner was denied for the additional and independent reason that Petitioner’s guilty plea admitted all of the elements of the offense. Therefore, Petitioner has not stated any valid reason for reconsideration of the Court’s previous denial of 24 25 26 evidence that but for constitutional error at his sentencing hearing, no reasonable juror would have found him eligible for the death penalty under” under the applicable state law. Id., at 350, 112 S. Ct. at 2525. 24 1 2 the motion. Lodged Doc. 7. 3 The ruling of the court is not contrary to, or an unreasonable application of, 4 clearly established federal law. Nor is an evidentiary hearing on his claim to entitlement to 5 equitable tolling warranted where further factual development is unnecessary. “It follows that if 6 the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a 7 district court is not required to hold an evidentiary hearing.” Schiro v. Landrigan, supra, 550 8 U.S. 465, 474, 127 S.Ct. 1933, 1940. “We have previously held that a district court in a habeas 9 corpus proceeding “‘need not conduct full evidentiary hearings,’” but may instead “‘expand the 10 record ... with discovery and documentary evidence.’” Williams v. Woodford, 384 F.3d 567, 590 11 (9th Cir. 2004). In this instance the court has expanded the record to include the preliminary 12 hearing transcript, a part of the record which significantly tends to undermine petitioner’s claim 13 of actual innocence (see below). 14 The declaration evidently submitted by the co-defendant, which was not originally 15 signed under penalty of perjury, as pointed out by the state court, states that petitioner, on the 16 pertinent date, “had nothing to do with the matter...was a victim of circumstance....never had the 17 firearm in question,” or knowledge of it. Lodged Doc. 14, p. 3. The co-defendant, Phillip 18 C(harles) Mann, goes on to assert that petitioner was implicated because both the detectives and 19 the prosecutor “coerced” him by promising leniency; he concludes that petitioner is “innocent of 20 all charges....” in the case. Id. 21 Petitioner belatedly, and perhaps conveniently, maintains now that all the 22 circumstantial evidence for the shootings rested on Mann rather than on himself: the pistol used 23 was a recent purchase of Mann’s; Mann hid the gun after the shootings; Mann had previously 24 threatened the life of the intended victim, his estranged girlfriend who was his child’s mother; 25 Mann had previously pointed a gun at the intended victim; Mann had an assault case pending, 26 involving the intended victim as the assault victim; Mann was denied by the intended victim 25 1 visits with his child; Mann believed the actual victim in the park to be his ex-girlfriend with 2 another man; and Mann was angry with his ex-girlfriend over a supposed loss of $4,500.00 worth 3 of home furnishings to her. Opp., p. 17; see also, petitioner’s July 31, 2009, supplemental 4 response in opposition (docket # 72), pp. 2-3. In addition, it was Mann who was the driver on 5 the night of the shootings and the one who drove to retrieve the pistol from his house and then 6 back to the park where he thought he had seen the intended victim with her friend, and Mann’s 7 mother had lent the intended victim $7,000.00 which she could not get back. Opp., p. 18; Supp. 8 Resp. in Opp., p. 3. 9 However, as respondent points out, the evidence of petitioner’s guilt was 10 “overwhelming.” Reply, p. 5. The factual basis at the time of petitioner’s change of plea set 11 forth the following: 12 13 14 15 [On] May 31st of this year, Mr. Chestang and another individual by the name of Phillip Mann were in the area of Vintage Park in the southeast portion of Sacramento County when they – late at night, about eleven or twelve o’clock at night, when they saw two people in the park who they perceived to be Mr. Phillip Mann’s prior girlfriend, a young lady by the name of Michelle Brown, and a young man that she was talking to who – who raised some notions of jealousy on the part of Mr. Mann. 16 17 18 Mr. Mann and Mr. Chestang then obtained a pistol, stalked the victims in the park by driving around the park with their lights out. Eventually Mr. Chestang got out of the vehicle, entered the park, approached the two people in the park, spoke to them briefly, and then shot them both with a pistol. 19 20 21 It turned out that the two people in the park were not Michelle Brown or anybody associated with Michelle Brown. It was entirely innocent individuals who happened to look like Michelle Brown, Sidney Newman and Marlena Ann Brooks, both of whom were – were killed by the gunshots fired by Mr. Chestang. 22 23 24 The evidence indicates that Mr. Chestang and Mr. Mann gave – planned this. They discussed it in the car before Mr. Chestang got out and actually approached the victims and shot them. They obtained a gun for the specific purpose that evening of shooting the two people in the park. Therefore, there is evidence of premeditation and deliberation. 25 26 Reply, pp. 5-6, quoting Lodged Doc. 32, pp. 4-5. 26 1 As respondent points out, petitioner, when given an opportunity to comment on the prosecution’s 2 summary of the evidence, declined, saying “No, sir,” when asked by the judge if he wished to do 3 so. Lodged Doc., p. 5. At the preliminary hearing, several of petitioner’s and the co-defendant’s 4 friends/acquaintances testified either to co-defendant Mann’s having informed them, in 5 petitioner’s presence, that petitioner had shot the victims, or to petitioner himself directly having 6 detailed the shootings and where the gun came from. Docket # 67, pp. 65-66,23 88-92, 102-107. 7 The witnesses recounted how Mann and petitioner asked them to provide an alibi for their 8 whereabouts at the relevant time. Id., pp. 62-63, 88, 92, 107-108. One witness described how 9 petitioner told him that Mann had gotten scared and that it was he, petitioner, who had 10 approached the victims and asked if they had seen a dog before he shot the girl three times and 11 the man twice. Id., at 89-90. Petitioner, in his supplemental opposition, contends that this 12 alleged assertion of petitioner’s testified to by another at the preliminary hearing was belied by 13 the testimony of the investigating deputy who found only three shell casings in the area, 14 maintaining that believing petitioner’s alleged confession requires believing that he could have 15 been wrong on such a “critical factual point,” a point on which only “the true shooter is likely to 16 have the correct knowledge regarding.” Supp. Resp. in Opp., p. 3. The court’s review of the 17 transcript reveals that Sacramento County Sheriff’s Deputy Paul Spreitzer (a homicide bureau 18 detective) testified to an approximation, that is, when asked if he had located any spent casings in 19 the vicinity of the victims’ bodies and to state how many “approximately,” he stated: “I believe it 20 was three.” Docket # 67, pp. 9, 20. He also testified that the male victim had died of a gunshot 21 wound to the chest, without clarifying whether he was shot once or twice. Id., at 18. The 22 detective’s testimony does not clarify precisely how many times either victim was shot. He 23 additionally did testify to his observation of “a small amount of blood” on the female victim’s 24 head at the crime scene. Id., at 12. This could be taken to corroborate petitioner’s evident 25 26 23 Again, the court references the pagination of the court docketing system. 27 1 representation, as testified to by an acquaintance of his named DeShawn Mays, that he believed 2 petitioner had said he had shot her “in the back of her head.” Id., at 103-104. The detective’s 3 limited preliminary hearing testimony does little to undermine petitioner’s original guilty plea. 4 Petitioner is far from actually innocent, and his proffer, even utilizing a Schlup 5 rationale, is insufficient to relieve him of the statute of limitations. 6 Conclusion 7 8 Accordingly, IT IS HEREBY RECOMMENDED that respondent’s August 8, 2008 (docket # 49) motion to dismiss be granted. 9 These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 11 days after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 14 shall be served and filed within ten days after service of the objections. The parties are advised 15 that failure to file objections within the specified time may waive the right to appeal the District 16 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 DATED: August 18, 2009 /s/ Gregory G. Hollows ____________________________________ GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 18 19 20 GGH:009 ches1173.mtd 21 22 23 24 25 26 28
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