(HC) Cleveland v. Owens, No. 2:2014cv01528 - Document 16 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 09/21/15 recommending that respondent's motion to dismiss 9 be granted and petitioner's application for a writ of habeas corpus be denied as untimely. This court decline to issue a certificate of appealability. MOTION to DISMISS 9 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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(HC) Cleveland v. Owens Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN ARTHER CLEVELAND, 12 Petitioner, 13 14 No. 2:14-cv-1528 JAM AC P v. FINDINGS & RECOMMENDATIONS RONALD SCOTT OWENS, 15 Respondents. 16 Petitioner, a former state prisoner proceeding pro se, has filed a petition for a writ of 17 18 habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Pending before the court is 19 respondent’s motion to dismiss on the grounds that petitioner is no longer in custody, the petition 20 was filed outside the one-year statute of limitations, and Ground Two of the petition should be 21 dismissed because it fails to state a cognizable federal claim. ECF No. 9. Petitioner has 22 responded to the motion (ECF No. 13) and respondent has replied (ECF No. 14). 23 I. Factual and Procedural Background 24 Petitioner pled no contest to two counts of possession of child pornography with a prior 25 offense. ECF No. 1 at 1; Lodged Doc. No. 1. On November 6, 2007, imposition of petitioner’s 26 state prison sentence was suspended and he was granted five years formal probation. Lodged 27 Doc. No. 1. On March 25, 2011, probation was terminated and petitioner was sentenced to two 28 years in state prison. Lodged Doc. No. 2. The paperwork indicates that petitioner’s sentence was 1 Dockets.Justia.com 1 a paper commitment only and that he was to report to the parole office. Id. at 1. On May 25, 2 2011, the abstract of judgment was amended to correct a clerical error. Lodged Doc. No. 3. 3 Petitioner was discharged from the custody of the California Department of Corrections and 4 Rehabilitation on June 28, 2014. Lodged Doc. No. 10. 5 A. 6 Petitioner did not appeal the judgment. ECF No. 1 at 6; ECF No. 9 at 2. 7 B. 8 Direct Review State Collateral Review 1. Sacramento County Superior Court Case No. 14HC00075 On February 4, 2014,1 petitioner filed a petition for writ of habeas corpus in the 9 10 Sacramento County Superior Court and it was assigned case number 14HC00075. Lodged Doc. 11 No. 12 at 1. Though respondent has not provided a copy of the petition, the order denying the 12 petition indicates that the petition related to the circumstances surrounding petitioner’s parole 13 violation and the conditions of his parole, rather than the underlying conviction. Id. at 2. The 14 petition was denied on March 14, 2014. Id. 15 The docket for case 14HC00075 indicates that petitioner filed three other cases in the 16 Sacramento County Superior Court that were related to his habeas petition. Id. at 1. Respondent 17 has not provided any information on these cases, but the docket reflects that the earliest filed of 18 the three cases was initiated on May 24, 2013. Id. 19 2. California Court of Appeal Case No. C075961 On March 12, 2014,2 petitioner filed a petition for writ of habeas corpus in the California 20 21 1 22 23 24 25 26 27 28 Based on the information provided in another of petitioner’s state court petitions, he was in physical custody for a parole violation from January 15, 2014, until March 1, 2014. Lodged Doc. No. 13 at 5-6. This means petitioner would be entitled to the benefit of the prison mailbox rule. See Houston v. Lack, 487 U.S. 266, 276 (1988). However, since the petition has not been provided, the filing date reflects the date the petition was filed by the court, but the court notes that petitioner’s first state appellate court petition states he filed a habeas petition in the Sacramento County Superior Court on January 22, 2014. Lodged Doc. No. 4 at 18. 2 Plaintiff’s state court petitions indicate that he was returned to physical custody immediately after filing the petition on March 12, 2014. Lodged Doc. No. 13 at 7. Since it is not clear how long petitioner remained in custody after that, the court will assume that petitioner was in physical custody until June 28, 2014, when he was discharged (Lodged Doc. No. 10), and is entitled to application of the prison mailbox rule through that date. 2 1 Court of Appeal, Third Appellate District and it was assigned case number C075961. Lodged 2 Doc. No. 4. The petition challenged his underlying conviction, the circumstances surrounding his 3 parole violation, and his parole conditions (id.) and was denied March 14, 2014 (Lodged Doc. 4 No. 5). 5 3. California Court of Appeal Case No. C075964 6 The website of the California Court of Appeals, Third Appellate District, indicates that 7 petitioner filed a second petition on March 12, 2014, and that it was assigned case number 8 C075964.3 This petition has not been provided by respondent. The docket indicates that it was 9 filed as a petition for writ of mandate, but the notes for the order denying the petition on March 10 14, 2014, identify it as a petition for writ of habeas corpus.4 11 4. California Supreme Court Case No. S217599 12 On March 22, 2014, petitioner filed a petition for writ of habeas corpus in the California 13 Supreme Court and it was assigned case number S217599. Lodged Doc. No. 6. The petition 14 challenged his underlying conviction, the circumstances surrounding petitioner’s parole violation, 15 and conditions of parole (id.) and was denied June 11, 2014 (Lodged Doc. No. 7). 16 5. California Court of Appeal Case No. C076399 17 On April 3, 2014,5 petitioner filed a petition for writ of habeas corpus in the California 18 Court of Appeal, Third Appellate District and it was assigned case number C076399. Lodged 19 Doc. No. 15. The petition appears to be appealing the denial of the petition filed in the 20 Sacramento County Superior Court, case number 14HC00075, and seeking discovery to enable 21 petitioner to challenge his conviction. Id. It was denied May 8, 2014. Lodged Doc. No. 16. 22 23 24 25 26 27 28 3 This court may take judicial notice of the records of other courts. See United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004) (citing United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980)); see also Fed. R. Evid. 201(b)(2) (court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned). 4 Docket for case number C075964 available at: http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=3&doc_id=2071273&doc_no =C075964 5 The front page of the petition indicates it was originally received April 25, 2014, and returned because it did not have a verification. Lodged Doc. 15 at 1. It was ultimately filed by the court on May 6, 2014. Id. 3 1 6. California Court of Appeal Case No. C076398 2 On April 7, 2014,6 petitioner filed a petition for writ of habeas corpus in the California 3 Court of Appeal, Third Appellate District, and it was assigned case number C076398. Lodged 4 Doc. No. 13. The petition challenged the circumstances surrounding petitioner’s parole violation 5 and his parole conditions (id.), and was denied May 8, 2014 (Lodged Doc. No. 14). 6 7. California Supreme Court Case No. S218079 7 On April 22, 2014, petitioner filed another petition for writ of habeas corpus in the 8 California Supreme Court and it was assigned case number S218079. Lodged Doc. No. 8. The 9 petition challenged the circumstances surrounding petitioner’s parole violation, his conditions of 10 parole, and length of parole (id.) and was denied June 11, 2014 (Lodged Doc. No. 9). 11 C. 12 On June 27, 2014, petitioner, proceeding pro se, filed the instant federal petition. ECF 13 No. 1. 14 II. The Federal Petition 15 Motion to Dismiss Respondent moves to dismiss the instant petition on the grounds that it is moot, this court 16 lacks jurisdiction, and the petition is untimely. ECF No. 9 at 3-9. He argues that the petition is 17 moot and this court lacks jurisdiction because petitioner has been released from custody. Id. at 3- 18 7. He further argues that the petition is untimely because petitioner’s judgment became final on 19 January 5, 2008, the last day to file his federal habeas petition was January 5, 2009, and petitioner 20 is not entitled to any statutory tolling. Id. at 8-9. Respondent also argues that Ground Two 21 should be dismissed because it fails to state a cognizable claim. Id. at 9-10. 22 III. Opposition 23 Petitioner argues that his petition is not moot because he is still being punished even 24 though he is no longer in custody. He also argues that he does not believe that there is a statute of 25 limitations for bringing a habeas petition as long as he is in some form of custody because the law 26 27 28 6 The front page of the petition indicates it was originally received April 25, 2014, and returned because it did not have a verification. Lodged Doc. 13 at 1. It was ultimately filed by the court on May 6, 2014. Id. 4 1 says a petition must be brought in “a reasonable amount of time.” ECF No. 13 at 2. He also 2 argues that he was making vigorous efforts to appeal his case but that county officials prevented 3 him from filing habeas petitions while he was in jail. Id. Finally, he argues that his petition 4 should not be dismissed because it states reasonable claims. Id. 5 IV. 6 Reply Respondent replies that the limitations petitioner is currently experiencing are insufficient 7 to satisfy the in custody requirement for a habeas case and the court is therefore without 8 jurisdiction. ECF No. 14 at 3-4. He also argues that petitioner’s argument that there is no statute 9 of limitations is meritless, and that to the extent petitioner is attempting to make a claim for 10 equitable tolling, he fails. Id. at 4. Finally, he asserts that petitioner has not disputed his claim 11 that Ground Two fails to state a claim because petitioner’s arguments dealt with his ineffective 12 assistance of counsel claims, which did not constitute Ground Two of the petition. Id. at 5. 13 14 V. Case in Controversy The petition in this case was filed on June 27, 2014 (ECF No. 1), and petitioner was 15 discharged from custody the next day (Lodged Doc. No. 10). Respondent argues that because 16 custody has ended, there is no longer a case in controversy rendering the case moot and depriving 17 the court of jurisdiction. ECF No. 9 at 3-7. 18 28 U.S.C. § 2254(a) provides that “a district court shall entertain an application for a writ 19 of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only 20 on the ground that he is in custody in violation of the Constitution. . .” (emphasis added). The 21 statute’s first reference to custody establishes a jurisdictional requirement. Bailey v. Hill, 599 22 F.3d 976, 979 (9th Cir. 2010). However, the jurisdictional requirement is met where the 23 petitioner is in custody at the time the petition is filed; custody need not continue for the court to 24 retain jurisdiction. 25 26 27 The petitioner must be in custody at the time that the petition is filed, see Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), but the petitioner’s “subsequent release from custody does not itself deprive the federal habeas court of its statutory jurisdiction.” Tyars v. Finner, 709 F.2d 1274, 1279 (9th 28 5 1 Cir. 1983). jurisdiction. 2 Physical custody is not indispensable to confer 3 Id. “[O]nce the federal jurisdiction has attached in the District Court, it is not defeated by the 4 release of the petitioner prior to completion of proceedings on such application.’” Carafas, 391 5 U.S. at 238. A prisoner who is on parole is still considered to be “in custody.” Maleng v. Cook, 6 490 U.S. 488, 491 (1989). Petitioner filed his case the day before he was discharged from 7 custody, and respondent concedes that petitioner was in custody at the time he filed the petition. 8 ECF No. 9 at 6. This court therefore retains jurisdiction. 9 Respondent’s arguments related to the statute’s second use of “in custody” are off point. 10 Section 2254(a) states in relevant part that a petition for habeas corpus can be brought “only on 11 the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the 12 United States.” While the first “in custody” relates to petitioner’s status at the time of filing the 13 petitioner, this second “in custody” describes the nature of the claim petitioner can bring. 14 Petitioner meets that standard as the petition challenges the underlying conviction on several 15 constitutional grounds.7 If petitioner’s claims are found to be true, the state’s custody of him 16 would have been in violation of his constitutional rights. In this case, the fact that petitioner is no 17 longer in that custody is irrelevant to jurisdiction, as the courts have very clearly held that a 18 petitioner only has to be “in custody” at the time he brings his petition. 19 The fact that petitioner is no longer in custody also does not render the case moot. A 20 habeas petition “is moot only if it is shown that there is no possibility that any collateral legal 21 consequences will be imposed on the basis of the challenged conviction.” Sibron v. New York, 22 392 U.S. 40, 57 (1968). “A habeas petition challenging the underlying conviction is never moot 23 simply because, subsequent to its filing, the petitioner has been released from custody.” Chacon 24 v. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994) (emphasis added), overruled on other grounds, 28 25 U.S.C. § 2253(c). The Ninth Circuit has held that it is an “irrebuttable” presumption that 26 27 28 7 Petitioner’s claims in his response to the motion to dismiss regarding the collateral consequences of his conviction (ECF No. 13) do not impact the jurisdictional analysis because they are not the basis of his petition. 6 1 “‘collateral consequences flow from any criminal conviction.’” Id. (quoting Hirabayashi v. U.S., 2 828 F.2d 591, 605-06 (9th Cir. 1987) (adding emphasis)). Petitioner is clearly challenging the 3 underlying conviction, and the collateral consequences doctrine prevents the petition from being 4 moot. Id.; Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). 5 Respondent, citing to Douglas v. Jacquez, 626 F.3d 501 (9th Cir. 2010), argues that the 6 relief the court can provide is limited to release from custody. ECF No. 9 at 5. But this argument 7 overlooks how the court effects that relief. Petitioner does not seek to have the court relieve him 8 of the collateral consequences of his conviction, as respondent indicates in his reply (ECF No. 14 9 at 4), though such relief would flow from the relief petitioner is seeking. Petitioner seeks to have 10 his conviction overturned (ECF No. 1 at 15), which is within the power of the court. In Douglas, 11 on which respondent relies, the Ninth Circuit found the district court had exceeded its authority 12 because it ordered the state court to modify the judgment to reflect conviction of a lesser offense. 13 626 F.3d at 505. The Ninth Circuit held that the proper remedy was to issue a conditional writ of 14 habeas corpus that ordered the conviction vacated only if the state did not re-sentence petitioner 15 within a reasonable amount of time. Id. The authority presented by respondent demonstrates 16 that, if petitioner’s claims are found to be true, this court has authority to order his conviction 17 vacated. 18 Because (1) petitioner was in custody when he filed his petition and (2) he is challenging 19 his underlying conviction, not just the collateral consequences of the conviction, respondent’s 20 motion to dismiss on the grounds that the case is moot and the court lacks jurisdiction must be 21 denied. 22 VI. 23 Statute of Limitations In his opposition to the motion to dismiss, petitioner argues that he believed that as long 24 as he was in some form of custody, he only had to bring his petition within “a reasonable amount 25 of time.” ECF No. 13 at 2. It appears that petitioner may have been referring to the California 26 rules regarding the time to seek review by a higher court within the state court system. See 27 Waldrip v. Hall, 548 F.3d 729, 734 (2008). This is not the standard for federal petitions. 28 Section 2244(d)(1) of Title 28 of the United States Code contains a one-year statute of 7 1 limitations for filing a habeas petition in federal court. This statute of limitations applies to 2 habeas petitions filed after April 24, 1996, when the Antiterrorism and Effective Death Penalty 3 Act (AEDPA) went into effect. Cassett v. Stewart, 406 F.3d 614, 625 (9th Cir. 2005). The one- 4 year clock commences from one of several alternative triggering dates. See 28 U.S.C. § 5 2244(d)(1). In this case the applicable date is that “on which the judgment became final by the 6 conclusion of direct review or the expiration of the time for seeking such review.” § 7 2244(d)(1)(A). 8 9 In this case, petitioner was granted five years of probation and imposition of his sentence was suspended on November 6, 2007. Lodged Doc. No. 1. On March 25, 2011, probation was 10 terminated and petitioner was sentenced to two years in state prison. Lodged Doc. No. 2. 11 Respondent argues that judgment became final on January 5, 2008, sixty days after petitioner was 12 granted five years of probation. ECF No. 9 at 8; see also Cal. R. Ct. 8.308(a) (defendant has sixty 13 days to file an appeal after judgment is entered). 14 In California, when a court grants probation, it can (1) suspend the imposition of a 15 sentence or (2) impose a sentence while suspending execution of it during the pendency of 16 probation. See People v. Howard, 16 Cal. 4th 1081, 1084 (Cal. 1997) (citing Cal. Pen. Code § 17 1203.1(a)). Therefore, when the court suspended imposition of petitioner’s sentence, no 18 judgment of conviction was rendered. Id. at 1087; People v. Arguello, 59 Cal. 2d 475, 476 (Cal. 19 1963). However, “[t]he order granting probation was, itself, an appealable order (Pen. Code, s 20 1237), and on such an appeal all matters going to the validity of the conviction could have been 21 raised. Since they were not raised then, they cannot be raised on a later appeal from the final 22 judgment.” People v. Wright, 275 Cal. App. 2d 738, 739 (Cal. App. 1969) (citations omitted); 23 People v. Chavez, 243 Cal. App. 2d 761, 763 (Cal. App. 1966); Cal. Pen. Code § 1237. 24 Generally, a defendant may appeal a subsequent order revoking probation and 25 implementing sentencing, but “the matters arising prior to pronouncement of judgment cannot 26 thereby be reviewed.” People v. Glasser, 238 Cal. App. 2d 819, 821 (Cal. App. 1965), 27 disapproved on other grounds by People v. Barnum, 29 Cal. 4th 1210, 1218-19, 1226 (Cal. 2003). 28 But even when a defendant fails to appeal after the initial grant of probation, the court still has an 8 1 “obligation to consider those alleged errors which may be raised at any time because they involve 2 violations of fundamental constitutional rights.” Id. at 824. Under the general rule, petitioner’s judgment became final on January 7, 2008,8 sixty days 3 4 after the order granting probation, and the statute of limitations expired one year later on January 5 7, 2009. Assuming, without deciding, that petitioner could have alleged facts involving 6 fundamental constitutional rights, such that they would have been reviewable on an appeal from 7 the order revoking probation, judgment became final on May 24, 2011, and the statute of 8 limitations expired on May 24, 2012. The instant petition was filed on June 27, 2014, ECF No. 1, 9 more than two years later. Accordingly, whether the limitations period is calculated from the 10 grant of probation or from its revocation, the petition is untimely absent statutory or equitable 11 tolling. 12 A. 13 Under the AEDPA, the statute of limitations is tolled during the time that a properly filed Statutory Tolling 14 application for state post-conviction or other collateral review is pending in state court. 28 U.S.C. 15 § 2244(d)(2). Since petitioner did not file any applications for state post-conviction or other 16 collateral review until more than a year after his judgment became final (see supra Section I), he 17 is not entitled to statutory tolling. State habeas petitions filed after the one-year statute of 18 limitations has expired do not revive the statute of limitations and have no tolling effect. See 19 Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jimenez v. Rice, 276 F.3d 478, 482 20 (9th Cir. 2001); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (petitioner is not entitled to 21 tolling where the limitations period has already run). 22 B. 23 A habeas petitioner is entitled to equitable tolling of AEDPA’s one-year statute of 24 limitations only if the petitioner shows: “‘(1) that he has been pursuing his rights diligently, and 25 (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland 26 v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Equitable Tolling 27 28 8 January 5, 2008, fell on a Saturday. Cal. R. Ct. 8.60(a); Cal. Code Civ. P. § 12a. 9 1 Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). “[T]he statute-of-limitations clock stops 2 running when extraordinary circumstances first arise, but the clock resumes running once the 3 extraordinary circumstances have ended or when the petitioner ceases to exercise reasonable 4 diligence, whichever occurs earlier.” Luna v. Kernan, 784 F.3d 640, 651 (9th Cir. 2015) (citing 5 Gibbs v. Legrand, 767 F.3d 879, 891-92 (9th Cir. 2014). An “extraordinary circumstance” has 6 been defined as an external force that is beyond the inmate’s control. Miles v. Prunty, 187 F.3d 7 1104, 1107 (9th Cir. 1999). “The diligence required for equitable tolling purposes is ‘reasonable 8 diligence,’ not ‘maximum feasible diligence.’” Holland, 560 U.S. at 653 (internal citations and 9 additional quotation marks omitted); see also Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir. 2010). 10 A showing of actual innocence can also satisfy the requirements for equitable tolling. Lee 11 v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc); McQuiggin v. Perkins, 133 S. Ct. 1924, 12 1928 (2013). “[W]here an otherwise time-barred habeas petitioner demonstrates that it is more 13 likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt, 14 the petitioner may pass through the Schlup [v. Delo, 513 U.S. 298 (1995),]9 gateway and have his 15 constitutional claims heard on the merits.” Lee, 653 F.3d at 937; accord, McQuiggin, 133 S.Ct. at 16 1928. 17 Petitioner alleges that he made “a vigorous effort to appeal to a higher court” but that 18 while he was in jail, county officials prevented him from filing a petition. ECF No. 13 at 2. He 19 also mentions that he believes that there is evidence of his attempts to file a petition shortly after 20 his conviction in 2007. Id. at 3. To the extent petitioner is attempting to make an argument for 21 equitable tolling, it is insufficient. Although interference by jail officials could potentially 22 constitute an extraordinary circumstance, petitioner has failed to establish either the scope of the 23 interference, or that he was diligent in his efforts to pursue litigation. Petitioner’s own sworn, 24 state habeas petition establishes that he was on parole from March 25, 2011, to January 10, 2014, 25 and therefore not in physical custody during that time (Lodged Doc. No. 13 at 3), and petitioner 26 27 28 9 In Schlup, the Supreme Court announced that a showing of actual innocence could excuse a procedural default and permit a federal habeas court to reach the merits of otherwise barred claims for post-conviction relief. 10 1 offers no explanation for his failure to file a habeas petition during that time. Nearly three years 2 of inactivity cannot be said to constitute diligent pursuit. Sanchez v. Yates, 503 F. App’x 520, 3 523 (9th Cir. 2013) (petitioner did not demonstrate diligence when he waited until ten months 4 after impediment was removed to file federal habeas petition); Pace, 544 U.S. at 419 (petitioner 5 not diligent when he waited years to file state petition for post-conviction relief and another five 6 months to pursue federal relief after state petition was decided); McQuiggin, 133 S. Ct. at 1931 7 (petitioner did not qualify for equitable tolling after waiting nearly six years to seek federal post- 8 conviction relief). Nor does petitioner’s ignorance of the statute of limitations entitle him to 9 equitable tolling. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner’s 10 lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable 11 tolling”). 12 To the extent the petition makes a claim of actual innocence that could potentially entitle 13 petitioner to equitable tolling, a petitioner claiming actual innocence must satisfy the Schlup 14 standard by demonstrating “‘that it is more likely than not that no reasonable juror would have 15 convicted him in the light of the new evidence.’” Lee, 653 at 938 (quoting Schlup, 513 U.S. at 16 327). Actual innocence in the miscarriage of justice context “means factual innocence, not mere 17 legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623-24 (1998); Sawyer v. Whitley, 18 505 U.S. 333, 339 (1992) (citing Smith v. Murray, 477 U.S. 527 (1986)); Jaramillo v. Stewart, 19 340 F.3d 877, 882-83 (9th Cir. 2003) (accord). 20 While the standard is exacting, permitting review only in an “extraordinary” case, 21 “absolute certainty” as to a petitioner’s guilt or innocence is not required. House v. Bell, 547 22 U.S. 518, 538 (2006). To make a credible claim of actual innocence, petitioner must produce 23 “new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness 24 accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324. 25 The habeas court then considers all the evidence: old and new, incriminating and exculpatory, 26 admissible at trial or not. House, 547 U.S. at 538. On this complete record, the court makes a 27 “‘probabilistic determination about what reasonable, properly instructed jurors would do.’” Id. 28 (quoting Schlup, 513 U.S. at 329). 11 1 Petitioner has not provided any new evidence in support of his actual innocence claims 2 and without new evidence, the actual innocence exception does not apply. Schlup, 513 U.S. at 3 327. 4 VII. 5 Conclusion Since the petition is untimely, the court declines to address whether Ground Two of the 6 petition states a claim for relief. The petition should be dismissed because it was filed beyond the 7 one-year statute of limitations. 8 VIII. 9 Certificate of Appealability Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must 10 issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A 11 certificate of appealability may issue only “if the applicant has made a substantial showing of the 12 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these 13 findings and recommendations, a substantial showing of the denial of a constitutional right has 14 not been made in this case. Therefore, no certificate of appealability should issue. 15 Accordingly, IT IS HEREBY RECOMMENDED that: 16 1. Respondent’s motion to dismiss (ECF No. 9) be granted and petitioner’s application 17 for a writ of habeas corpus be denied as untimely. 18 19 2. This court decline to issue the certificate of appealability referenced in 28 U.S.C. § 2253. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 25 objections shall be filed and served within fourteen days after service of the objections. The 26 parties are advised that failure to file objections within the specified time may waive the right to 27 //// 28 //// 12 1 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 2 DATED: September 21, 2015 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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