(HC) Gerolaga v. Evans, No. 2:2008cv02542 - Document 17 (E.D. Cal. 2009)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/28/09 ORDERING respondent's 05/01/09 request to substitute Warden Evans as respondent in this action 11 is granted. The clerk of the court is directed to am end the docket to reflect that Warden Michael S. Evans is the respondent in this action. Also, RECOMMENDING that respondent's 05/01/09 motion to dismiss 11 be granted; and this action be closed. Motion to Dismiss 11 referred to Judge Lawrence K. Karlton. Objections due within 20 days. (Plummer, M)
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(HC) Gerolaga v. Evans Doc. 17 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 TONY GEROLAGA, JR., 11 12 13 14 15 16 Petitioner, No. CIV S-08-2542 LKK DAD P vs. M.C. KRAMER, Warden, ORDER AND Respondent. FINDINGS AND RECOMMENDATIONS / Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254. On March 6, 2009, the undersigned ordered respondent to 18 file and serve a response to the petition. On May 1, 2009, respondent filed the pending motion to 19 dismiss, arguing that petitioner’s habeas petition is time-barred under the Antiterrorism and 20 Effective Death Penalty Act of 1996 (“AEDPA”). Petitioner has filed an opposition to the 21 motion and respondent has filed a reply. 22 BACKGROUND 23 On November 14, 2003, a San Joaquin County Superior Court jury convicted 24 petitioner of attempted murder, two counts of first degree residential robbery, assault with a 25 deadly weapon, dissuading a witness by force or threat, unlawful taking of a vehicle, and false 26 imprisonment by violence. The jury also found several sentencing enhancement allegations to be 1 Dockets.Justia.com 1 true. Pursuant to the jury’s verdict, the trial court sentenced petitioner to an indeterminate term 2 of life in state prison with the possibility of parole and a consecutive determinate term of fifteen 3 years and four months in state prison. On August 1, 2005, the California Court of Appeal for the 4 Third Appellate District stayed petitioner’s sentence in connection with his false imprisonment 5 conviction but affirmed the judgment in all other respects. On November 2, 2005, the California 6 Supreme Court denied review. (Pet. at 2; Resp’t’s Lodged Docs. 1-4.) 7 Petitioner subsequently filed three petitions for writ of habeas corpus in state 8 court. On January 19, 2007, he filed a petition for writ of habeas corpus in the San Joaquin 9 County Superior Court which was denied on April 6, 2007. On November 18, 2007, petitioner 10 filed a petition for writ of habeas corpus in the California Court of Appeal for the Third 11 Appellate District which was denied on December 13, 2007. Finally, on January 30, 2008, 12 petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was 13 denied on July 30, 2008. (Resp’t’s Lodged Docs. 5-10.) 14 15 On October 23, 2008, petitioner commenced this action by filing a federal petition for writ of habeas corpus. 16 17 18 RESPONDENT’S MOTION TO DISMISS I. Respondent’s Motion Respondent has filed a motion to dismiss arguing that petitioner’s federal habeas 19 petition is time-barred. Specifically, respondent argues that on November 2, 2005, the California 20 Supreme Court denied petitioner’s petition for review, causing petitioner’s judgment of 21 conviction to become “final” on January 31, 2006, after the time for filing a petition for writ of 22 certiorari expired. Respondent argues that the one-year statute of limitations for filing a federal 23 habeas petition began to run the following day, on February 1, 2006, and expired one year later 24 on January 31, 2007. (Resp’t’s Mot. to Dismiss at 3.) 25 26 Respondent acknowledges that the proper filing of a state post-conviction application challenging a judgment of conviction tolls the one-year statute of limitations period. 2 1 Respondent argues that petitioner, however, did not file his first state habeas petition until 352 2 days had elapsed under the statute of limitations for the filing of a federal petition. Respondent 3 concedes that petitioner is entitled to statutory tolling for the 78 days that his first habeas petition 4 was pending in state court. However, respondent argues that petitioner unreasonably delayed in 5 filing his second habeas petition and is therefore not entitled to tolling for the 225 days between 6 the San Joaquin County Superior Court’s denial of his first petition and his filing of his second 7 state habeas petition with the California Court of Appeal. (Resp’t’s Mot. to Dismiss at 4.) 8 9 Granting petitioner the benefit of 78 days of tolling, respondent contends that the one-year statute of limitations expired on April 19, 2007, and that petitioner did not file his 10 federal petition until more than a year later on October 27, 2008. Finally, although petitioner 11 filed a second and third habeas petition in progressively higher state courts, respondent argues 12 that those filings took place after the statute of limitations for the filing of his federal petition 13 expired and do not restart the clock at zero or otherwise save petitioner’s claims from being time- 14 barred. Accordingly, respondent concludes that petitioner’s federal petition for writ of habeas 15 corpus is untimely and should be dismissed with prejudice. (Resp’t’s Mot. to Dismiss at 5.) 16 II. Petitioner’s Opposition 17 In opposition to respondent’s motion to dismiss, petitioner argues that he is 18 actually innocent of attempted murder. Petitioner contends that the prosecution knew or should 19 have known that it was relying on false testimony admitted against him at his trial. Petitioner 20 argues that two of the prosecution’s star witnesses offered materially different versions of events 21 at trial compared to their earlier accounts as documented in a police report. For example, 22 according to petitioner, Officer Carcamo testified at trial that Ms. Hayes, the victim, was lying in 23 the hospital bed having difficulty speaking with blood coming from her mouth and showering his 24 face. In contrast, Officer Carcamo did not describe the victim’s injuries as such in his police 25 report. Similarly, according to petitioner the victim, Ms. Hayes, gave materially false testimony 26 at trial as established by the fact that she gave a statement to Officer Carcamo on the night of the 3 1 crime that was inconcistent with that trial testimony. (Pet’r’s Opp’n to Resp’t’s Mot. to Dismiss 2 at 2-3 & Pet. Attach. at 3-7, Exs. 3-4.) 3 Petitioner also contends that his trial counsel was ineffective because he should 4 have been aware of the prosecution witnesses’ false testimony. According to petitioner, his trial 5 counsel failed to impeach either witness with their prior inconsistent statements that indicated the 6 victim had received less severe injuries which in turn would have undermined the attempted 7 murder charge. In addition, petitioner argues that his trial counsel failed to subpoena the victim’s 8 medical records or secure the testimony of the victim’s medical team to describe the nature and 9 extent of her injuries and medical condition. (Pet’r’s Opp’n to Resp’t’s Mot. to Dismiss at 3 & 10 11 Pet. Attach. at 7-14, Exs. 3-4.) Petitioner maintains that any procedural default on his part should be excused in 12 light of his actual innocence. In petitioner’s view, it is probable that no reasonable juror could 13 convict him beyond a reasonable doubt. Petitioner requests an evidentiary hearing to review the 14 victim’s medical records and to hear testimony from her medical team. (Pet’r’s Opp’n to 15 Resp’t’s Mot. to Dismiss at 3-5.) 16 III. Respondent’s Reply 17 In reply, respondent argues that petitioner does not dispute the contents of the 18 pending motion to dismiss and instead merely argues that he is actually innocent of the charges 19 upon which he was convicted. Respondent contends that neither the United States Supreme 20 Court nor the Ninth Circuit has ever found that the “fundamental miscarriage of justice” 21 exception announced in Schlup v. Delo, 513 U.S. 298 (1995) is applicable to, or sufficient to 22 override, the AEDPA statute of limitations. Moreover, even if an actual innocence claim could 23 forgive an untimely filing under the AEDPA statute of limitations violation, respondent argues 24 that petitioner has not made any showing that he is factually innocent. (Resp’t’s Reply at 1-3.) 25 26 In this latter regard, respondent relies specifically on the San Joaquin County Superior Court’s decision denying petitioner’s petition for writ of habeas corpus. Therein, the 4 1 court rejected petitioner’s claims that Ms. Hayes and Officer Carcamo offered false testimony, 2 stating: 3 4 Petitioner has also failed to demonstrate that any perjured testimony was elicited at his trial. That additional facts were testified to other than what appeared in the police report is not evidence that the witnesses were lying. 5 6 7 (Resp’t’s Reply at 4.) Respondent also relies on the California Court of Appeal’s opinion affirming 8 petitioner’s conviction on appeal. The Court of Appeal indicated that the evidence admitted at 9 petitioner’s trial demonstrated that petitioner knocked the victim, Ms. Hayes, down upon entering 10 her daughter’s bedroom and that the victim lost consciousness. When she regained 11 consciousness, petitioner was kicking her. Petitioner beat her to the point where her eyes were 12 swollen shut and her face, arms and hands were completely bloodied. Petitioner bound her hands 13 behind her back with duct tape, but her hands were so bloody the tape did not stick. Petitioner 14 then duct-taped the victim’s eyes shut and wrapped duct tape around her head, covering her nose 15 and mouth. The victim testified at trial that she could not breathe through her nose but moved 16 her chin somehow to gasp for air through the corner of her mouth. Officers found blood on the 17 bathroom floor, toilet, bathroom sink, the front door, and in the bedroom of the victim’s daughter 18 on the carpet, wall, blinds, bed, and ceiling. The victim was hospitalized for treatment of her 19 injuries for four to five days. Her face was noted to be disfigured by numerous lacerations, and 20 she needed stitches to her forehead, left eyelid, above her right eyebrow, on her nose, on her right 21 cheek, on her right ear, and on her lips. (Resp’t’s Reply at 5.) 22 Finally, respondent relies on the trial court’s decision to deny petitioner’s motion 23 for a new trial due to insufficiency of evidence. In this regard, the trial court held that the 24 evidence showed that the victim would have died from suffocation, but because she was bleeding 25 so much from the severe beating, the duct tape used by petitioner slipped off and she was able to 26 get out. (Resp’t’s Reply at 5.) 5 1 Respondent maintains that petitioner’s conviction for attempted murder was fair, 2 accurate and fully supported by the evidence introduced at trial. Respondent also repeats the 3 contention that petitioner has failed to establish his actual innocence. (Resp’t’s Reply at 5.) 4 5 ANALYSIS I. The AEDPA Statute of Limitations 6 7 On April 24, 1996, Congress enacted AEDPA which amended 28 U.S.C. § 2244 by adding the following provision: 8 (d)(1) 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 – 9 10 (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; 11 12 (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; 13 14 15 (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 16 17 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 18 19 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 20 21 22 The one-year AEDPA statute of limitations applies to all federal habeas corpus petitions filed 23 after the statute was enacted and therefore applies to the pending petition. See Lindh v. Murphy, 24 521 U.S. 320, 322-23 (1997). 25 ///// 26 ///// 6 1 2 II. Application of § 2244(d)(1)(A) As noted above, on November 14, 2003, a San Joaquin County Superior Court 3 jury convicted petitioner of attempted murder, two counts of first degree residential robbery, 4 assault with a deadly weapon, dissuading a witness by force or threat, unlawful taking of a 5 vehicle, and false imprisonment by violence. The jury also found several enhancement 6 allegations to be true. The trial court sentenced petitioner to an indeterminate term of life with 7 the possibility of parole in state prison and a consecutive determinate term of fifteen years and 8 four months in state prison. On August 1, 2005, the California Court of Appeal for the Third 9 Appellate District stayed petitioner’s sentence in connection with his false imprisonment 10 conviction but affirmed the judgment in all other respects. On November 2, 2005, the California 11 Supreme Court denied review. 12 For purposes of federal habeas review, petitioner’s conviction became final on 13 January 31, 2006, ninety days after the California Supreme Court denied his petition for review. 14 See Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007); Bowen v. Roe, 188 F.3d 1157, 15 1158-59 (9th Cir. 1999). The AEDPA statute of limitations period therefore began to run the 16 following day, on February 1, 2006, and expired one year later on January 31, 2007. Petitioner 17 did not file his federal habeas petition until on October 23, 2008. Accordingly, petitioner’s 18 federal petition for writ of habeas corpus is untimely unless he is entitled to the benefit of tolling. 19 III. Application of § 2244(d)(2) 20 “The time during which a properly filed application for State post-conviction or 21 other collateral review with respect to the pertinent judgment or claim is pending shall not be 22 counted” toward the AEDPA statute of limitations. 28 U.S.C. § 2244(d)(2). The statute of 23 limitations is not tolled during the interval between the date on which a judgment becomes final 24 and the date on which the petitioner files his first state collateral challenge because there is no 25 case “pending.” Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Once a petitioner 26 commences state collateral proceedings, a state habeas petition is “pending” during a full round 7 1 of review in the state courts, including the time between a lower court decision and the filing of a 2 new petition in a higher court, as long as the intervals between the filing of those petitions are 3 “reasonable.” Carey v. Saffold, 536 U.S. 214, 222-24 (2002). 4 In this case, 352 days of the one-year statute of limitations elapsed before 5 petitioner filed his first habeas petition in the Sacramento County Superior Court on January 19, 6 2007, leaving him only thirteen days remaining of the federal statute of limitations. Even 7 assuming for the sake of argument that petitioner is entitled to statutory tolling for the entire time 8 that his three habeas petitions were pending in state court, he waited nearly three additional 9 months (from July 30, 2008 to October 23, 2008) after the California Supreme Court denied him 10 11 habeas relief before he filed his federal petition in this court. Accordingly, by the time petitioner filed his federal petition on October 23, 2008, 12 more than one year had run on the AEDPA statute of limitations, rendering petitioner’s federal 13 habeas petition time-barred. 14 IV. Actual Innocence Claim 15 Neither the United States Supreme Court nor the Ninth Circuit has squarely 16 addressed whether a habeas petitioner’s demonstration of probable innocence may excuse his 17 noncompliaice with the AEDPA statute of limitations. See Majoy v. Roe, 296 F.3d 770, 776 (9th 18 Cir. 2006) (declining to answer whether “surviving the rigors of this gateway [under Schlup] has 19 the consequence of overriding AEDPA’s one-year statute of limitation”). However, at least one 20 district court in California has held that such a demonstration may excuse a habeas petitioner’s 21 untimeliness. See Lisker v. Knowles, 463 F. Supp. 2d 1008, 1032 (C.D. Cal. 2006). See also 22 Johnson v. Knowles, 541 F.3d 933 (9th Cir. 2008) (the “fundamental miscarriage of justice” 23 exception does not excuse an untimely habeas petition where the petitioner has conceded guilt). 24 In this case, even assuming that the AEDPA one-year statute of limitations is subject to the 25 “fundamental miscarriage of justice” exception, petitioner has not met his burden of 26 demonstrating the requisite “actual innocence.” 8 1 A petitioner’s claim of actual innocence must be supported “with new reliable 2 evidence–whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or 3 critical physical evidence–that was not presented at trial.” Schlup, 513 U.S. at 324. The 4 petitioner “must show that, in light of all the evidence, including evidence not introduced at trial, 5 ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a 6 reasonable doubt.’” Majoy, 296 F.3d at 776 (quoting Schlup, 513 U.S. at 327). See also Griffin 7 v. Johnson, 350 F.3d 956, 962-63 (9th Cir. 2003); Sistrunk v. Armenakis, 292 F.3d 669, 672-73 8 (9th Cir. 2002) (en banc). 9 Here, petitioner has not offered any new evidence to support his challenge to his 10 conviction for attempted murder. Rather, he merely argues that the victim, Ms. Hayes, and 11 Officer Carcamo gave false testimony at his trial because they testified about additional facts that 12 were not included in the police reports regarding the crimes. Petitioner also speculates that 13 additional evidence in the form of the victim’s medical records and testimony from the medical 14 professionals who treated her for her injuries could have possibly demonstrated that her injuries 15 were not as severe as she and Officer Carcamo testified a trial. Petitioner’s conclusory 16 arguments and pure speculation, however, simply do not satisfy the Schlup standard. See, e.g., 17 Martinez v. Clark, No. CV 09-2031 SGL (RNB), 2009 WL 1788402 at *5 (C.D. Cal. June 23, 18 2009) (in the few cases habeas petitioners have been able to meet the Schlup standard, the “new 19 evidence” consisted of “credible evidence that the petitioner had a solid alibi for the time of the 20 crime, numerous exonerating eyewitness accounts of the crime, DNA evidence excluding the 21 petitioner and identifying another potential perpetrator, a credible confession by a likely suspect 22 explaining that he had framed the petitioner, and/or evidence contradicting the very premise of 23 the prosecutor’s case against the petitioner.”) (and cases therein). 24 Moreover, while petitioner appears to claim that he is actually innocent of 25 attempted murder because the injuries suffered by his victim were not sufficient to support that 26 charge, he also appears to concede that he was guilty of committing lesser offenses against the 9 1 victim. Insofar as petitioner is claiming legal innocence or innocence as a result of prosecutorial 2 misconduct or ineffective assistance of counsel, he has failed to raise a proper and cognizable 3 claim within the meaning of the “actual innocence” exception under Schlup. See Gandarela v. 4 Johnson, 286 F.3d 1080, 1085 (9th Cir. 2002) (“The required evidence must create a colorable 5 claim of actual innocence, that the petitioner ‘is innocent of the charge for which he [is] 6 incarcerated,’ as opposed to legal innocence as a result of legal error.”); Burleson v. Cal. Dep’t of 7 Corrs. & Rehab., No. C 08-01853 SBA (PR), 2009 WL 2941516 (N.D. Cal. Sept. 10, 2009) 8 (petitioner’s claim that he was innocent of murder and should have been convicted only of 9 voluntary manslaughter instead was a legal innocence claim and not a proper “actual innocence” 10 claim under Schlup). 11 Finally, the court declines to hold an evidentiary hearing on petitioner’s “actual 12 innocence” claim because he has failed to demonstrate that he might be able “to muster a 13 plausible factual case meeting the exacting gateway standard established by the Supreme Court in 14 Schlup for overriding a petitioner’s clear failure to meet deadlines and requirements for filing a 15 timely petition in federal court.” Majoy, 296 F.3d at 775. 16 In sum, for the reasons discussed above, respondent’s motion to dismiss should be 17 granted, and petitioner’s federal petition for writ of habeas corpus should be dismissed with 18 prejudice. 19 OTHER MATTERS 20 Respondent has informed the court that Michael S. Evans, not M.C. Kramer, is 21 the current warden at Folsom State Prison. Respondent requests that the court substitute Warden 22 Evans as respondent in this action. Good cause appearing, the court will grant respondent’s 23 request. 24 ///// 25 ///// 26 ///// 10 1 CONCLUSION 2 IT IS HEREBY ORDERED that: 3 1. Respondent’s May 1, 2009 request to substitute Warden Evans as respondent 4 in this action (Doc. No. 11) is granted; and 5 6 2. The Clerk of the Court is directed to amend the docket to reflect that Warden Michael S. Evans is the respondent in this action. 7 IT IS HEREBY RECOMMENDED that: 8 1. Respondent’s May 1, 2009 motion to dismiss (Doc. No. 11) be granted; and 9 2. This action be closed. 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 12 days after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 15 shall be served and filed within ten days after service of the objections. The parties are advised 16 that failure to file objections within the specified time may waive the right to appeal the District 17 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 DATED: October 28, 2009. 19 20 21 22 DAD:9 gero2542.157 23 24 25 26 11
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