Hernandez-Cruz v. Bowser, No. 2:2017cv01784 - Document 33 (D. Or. 2018)

Court Description: OPINION AND ORDER: Petition for Writ of Habeas Corpus (# 2 ) is dismissed as untimely. The Court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) (2). Signed on 11/13/2018 by Judge Robert E. Jones. (joha)
Download PDF
Hernandez-Cruz v. Bowser Doc. 33 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON RUDOLFO HERNANDEZ-CRUZ, Case No. 2:17-cv-01784-JO Petitioner, OPINION AND ORDER v. TROY BOWSER, Respondent. Rudolfo Hernandez-Cruz 17313077 Two Rivers Correctional Institution 82911 Beach Access Road Umatilla, Oregon 97882-9419 Petitioner, Pro Se Ellen F. Rosenblum, Attorney General Nicholas M. Kallstrom, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com JONES, District Judge. Petitioner U.S.C. § brings 2254 this habeas challenging the corpus case legality of pursuant his to 28 state-court convictions for Attempted Murder, Assault, and Unlawful Use of a Weapon. Because Petitioner failed to timely file this case, his Petition for Writ of Habeas Corpus (#2) is dismissed. BACKGROUND Petitioner case two days viciously after she chest. ability to As fully a female romantic sliced her face, result turn the ended their stabbed her in the neck, in the attacked of the her head in this relationship. He and tried to stab her attack, and victim the victim lost suffers from the substantial scarring for the remainder of her life. On January 9, 2009, the Washington County Grand Jury indicted Petitioner on one count of Attempted Murder, four counts of Assault in the First Degree, of a Weapon. Respondent's and five counts of Unlawful Use Exhibit convicted him of all charges, 102. A jury subsequently and the trial court sentenced him to 300 months in prison. Petitioner took a Appeals affirmed the written opinion. P. 3d 166 (2011). direct trial State v. appeal, court's but the Oregon Court decision without Hernandez-Cruz, 240 Or. App. Petitioner did not seek review of issuing 563, a 249 from Oregon's Supreme Court. Petitioner next filed for post-conviction relief ("PCR") in Malheur County where the PCR Court denied relief on his claims. Respondent's Exhibit 125. 2 - OPINION AND ORDER The Oregon Court of Appeals affirmed the lower court without opinion, denied review. rev. Cruz v. and the Oregon Supreme Court 276 Or. Nooth, App. 918, 370 P.3d 565, 359 Or. 777, 381 P.3d 815 (2016). denied, Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on July 20, 2018. Respondent asks the Court to dismiss the action because Petitioner waited 1065 days to file it, placing it well outside the applicable one-year statute of Petitioner concedes that his case is untimely, limitations. but he asks the Court to excuse this procedural deficiency because he is entitled to equitable tolling because: caused him to delay filing (1) his transfer to another prison this case; and ( 2) he is actually innocent based upon his intoxication at the time of his crimes. DISCUSSION A habeas corpus petitioner must generally file his federal challenge to his state convictions within one year of the time those convictions become final at the conclusion of his direct review. done 28 so, U.S.C. equitable 2244 (d) (1) (A). § tolling statute of limitations. (2010). litigant A establish: and (2) ( 1) is available Holland seeking Where to v. a petitioner has to Florida, invoke toll the 560 U.S. equitable not one-year 631, tolling 645 must that he has been pursuing his rights diligently; that some extraordinary circumstance prevented him from timely filing his petition. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). In his Petition, Petitioner asserts that he is entitled to equitable tolling because he suffers from a language barrier and received less help preparing his filings after his transfer from 3 - OPINION AND ORDER the Snake River Correctional Institution to the Two Rivers Correctional Institution. Even assuming his language barrier and prison transfer circumstance, combined to present an extraordinary the transfer did not occur until well after the limitation period had expired. 1 Petitioner next claims that he is actually innocent of his crimes. A petitioner who fails to comply with the one-year filing deadline applicable to 28 U.S.C. § 2254 habeas corpus cases may overcome that default if he is able to show that he is actually innocent of underlying 569 U.S. Perkins, showing his of 383, actual 386 criminal (2013). innocence, a conduct. McQuiggin v. In order to make a gateway petitioner must present "new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence- that was not presented at trial" which establishes that "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). Petitioner directs the Court to the Declaration of Bart Reid submitted Declaration during was Petitioner's not presented considered new evidence. 963 ( 9th Cir. 2003) . PCR at See Griffin Reid was a proceedings. Petitioner's v. Johnson, Because trial, it the is 350 F.3d 950, forensic scientist who stated that he calculated Petitioner's likely blood alcohol content was 1 The direct appellate judgment issued on April 18, 2011. Petitioner signed his PCR Petition on October 22, 2012, thereby allowing 553 untolled days to accrue. Petitioner's prison transfer occurred on April 22, 2016, three and one-half years after he had already breached the federal limitation period by almost two-hundred days. 4 - OPINION AND ORDER between . 31 and . 38, a range which would be consistent with intermittent loss of consciousness and would interfere with his ability to form intent. Respondent's Exhibit 117. However, Reid specifically stated that his estimation "was only as accurate as the information provided to me including petitioner's description of the amounts and types of alcohol he had consumed." Id at 5. Reid did not base his BAC estimate upon an analysis of Petitioner's blood on the night in question. Instead, he utilized what Petitioner probable range. claimed to have consumed to come up with Relying on Petitioner's questionable candor, a as well as his recollection from a night in which he claimed to be severely intoxicated, would not lead jurors to necessarily adopt Reid's figures. More importantly, even if Petitioner had been as inebriated as Reid theorized, Reid's Declaration does not establish or even allude to a fails to trial. lack of intent on Petitioner's part. contradict the Specifically, it through on a strong evidence was evident that threat he made two days broke up with him. of It therefore intent adduced Petitioner at followed earlier when the victim He ominously told her to "think well" about her decision, and that he "hated [her] smile." Trial Transcript, p. 40. Two another days man cousin), later, (whom upon Petitioner seeing did the not victim know was walking the with victim's Petitioner disfigured her face and tried to kill her. Respondent's Exhibit 121. The link between Petitioner's threats and his perfectly actions, aware separated by two of his actions. 5 - OPINION AND ORDER days, suggests Certainly, the that he was Court cannot conclude that Reid's Declaration amounts to exculpatory scientific evidence so strong that, had the defense presented it at trial, no reasonable juror would have voted to convict Petitioner. Consequently, he is not entitled to equitable tolling and, thus, unable to excuse his untimely filing. CONCLUSION For the reasons identified above, Habeas Corpus to issue a (#2) the Petition for Writ of is dismissed as untimely. Certificate of Appealability The Court declines on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) (2). IT IS SO ORDERED. DATED this /~""'- day of November, 2018. 6 - OPINION AND ORDER Jones tates District Judge