Opinion
Case No. 5:19-cv-00253-R-KES
05-14-2019
SERAFIN SANTANA, Petitioner, v. RICK HILL, Warden, Respondent.
AMENDED REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
This Amended Report and Recommendation ("R&R") is submitted to the Honorable Manuel L. Real, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Courts for the Central District of California.
I.
INTRODUCTION
On January 22, 2019, California inmate Serafin Santana ("Petitioner") constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the "Petition"). (Dkt. 1 at 21 [signature date].) Petitioner is currently serving a sentence of 25 years to life after a jury convicted him of "attempted mayhem" for shooting then 15-year-old Bryan Vallejo three times in the left leg.
All page citations are to the CM/ECF pagination, except citations to the Reporter's Transcript ("RT") or Clerk's Transcript ("CT"). "Under the mailbox rule, a prisoner's pro se habeas petition is deemed filed when he hands it over to prison authorities for mailing to the relevant court." Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citation omitted). A court generally deems a habeas petition filed on the day it is signed based on a rebuttable presumption that the petitioner turned the petition over to prison authorities for mailing that day. Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (per curiam, as amended); Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). A petitioner is not entitled to the benefit of the mailbox rule, however, if he gave the petition to prison authorities after the AEDPA limitations period already expired. Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). Here, even assuming Petitioner is entitled to the benefit of the mailbox rule, his Petition is untimely.
The Petition was accompanied by a motion for "Leave of Court for Jurisdiction of U.S.D.C. [United States District Court]." (Dkt. 2.) In this motion, Petitioner attempts to address proactively arguments Respondent might raise that the Petition is successive or untimely.
On March 8, 2019, Respondent moved to dismiss the Petition as untimely under the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (Dkt. 8 [motion]; Dkt. 9, 15 [lodged documents].) Petitioner opposed the motion, primarily arguing that he qualifies for the equitable exception to AEDPA's statute of limitations available to those with new, reliable evidence of actual innocence . (Dkt. 12.) See Schlup v. Delo, 513 U.S. 298 (1995). Respondent filed a reply. (Dkt. 14.)
The undersigned Magistrate Judge issued an initial R&R recommending that the Petition be dismissed as untimely because Petitioner is entitled neither to sufficient tolling to render his Petition timely, nor to application of the Schlup actual innocence exception. (Dkt. 19.) The Magistrate Judge issues this Amended R&R to address Petitioner's Objections and attached exhibits (Dkt. 20) and continues to recommend that the Petition be dismissed as untimely.
Because Petitioner already objected to the initial R&R under 28 U.S.C. § 636(b)(1)(c), this Amended R&R does not initiate a new 14-day period for objections.
II.
FACTUAL BACKGROUND
The underlying facts are taken from the published California Supreme Court decision on Petitioner's direct appeal. (Lodged Document ["LD"] 18); People v. Santana, 56 Cal. 4th 999 (2013). Unless rebutted by clear and convincing evidence, these facts may be presumed correct. Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008); 28 U.S.C. § 2254(e)(1).
On the evening of August 12, 2007, [Petitioner] and his friends attended a party given by his coworker, Juan Gomez, in Moreno Valley. Around 2:00 a.m., Bryan Vallejo, a 15-year-old neighbor who lived three houses down from Gomez, was in his front yard with his friend, Andrew Ortiz. [Petitioner] and several men approached Vallejo and Ortiz. One of the men with [Petitioner] asked Vallejo about the possibility of getting marijuana. Vallejo said he would try to get some. When Vallejo later told the men he would not be able to get the drugs, they threw trash on Vallejo's lawn and an argument ensued. After exchanging some words, the group moved up the street.
Several men from [Petitioner's] group—but not [Petitioner]—began to fight Vallejo. When Ortiz started to move towards Vallejo, [Petitioner] pointed a gun at Ortiz's head and said, "This bitch ain't gonna do nothin'." [Petitioner] struck Ortiz with his gun on the back of the head and on the forehead, and then ran towards Vallejo. Ortiz yelled, "He has a gun." After being struck with an object that felt like metal, Vallejo fell to the ground. The men continued to beat Vallejo and then ran off and got into a white Cadillac parked nearby. [Petitioner] walked towards Vallejo, who was still lying on the ground. Standing three to four feet from Vallejo, [Petitioner] shot him in the leg three times with a small black revolver. [Petitioner] then ran across the street and got into another car, which drove away. Vallejo was taken to the hospital and treated for his injuries. He had been shot three times in his left leg and buttock area. The wounds were "through and through," i.e., all with exit points, and required no stitches. Vallejo, however, felt pain when he changed the bandages and whenever he walked or sat. Also, for a period of time, he had to walk with a cane and wear slippers. He was unable to play football when he returned to school. Both Vallejo and Ortiz identified defendant as the shooter. (LD 18 at 3.) Santana, 56 Cal. 4th at 1001-02.
III.
PROCEDURAL HISTORY
A. Trial and Direct Appeal.
Petitioner's first trial in March 2009 resulted in a mistrial because the jury could not reach a verdict. Santana, 56 Cal. 4th at 1002. In June 2009, a second jury convicted him of attempted mayhem against Vallejo and two counts of assault with a firearm against Vallejo and Ortiz. (LD 4, Clerk's Transcript ["CT"] 167-174.)
The California Court of Appeal found reversible instructional error on the attempted mayhem charge. (LD 10, 12); People v. Santana, 200 Cal. App. 4th 182 (2011). The California Supreme Court reversed the Court of Appeal, finding that the instructional error was harmless. (LD 18); Santana, 56 Cal. 4th at 1012. On remand, the Court of Appeal addressed Petitioner's other claims of error and instructed the trial court to enter an amended abstract of judgment after conducting additional proceedings. (LD 25); People v. Santana, 2013 Cal. App. Unpub. LEXIS 6476, 2013 WL 4833832 (Sept. 11, 2013).
The trial court entered an amended abstract of judgment on December 4, 2013. (LD 47, 48.) Petitioner did not pursue any further direct appeals. B. State Habeas Petitions.
Petitioner has filed the following state habeas petitions, which the Court will identify in this R&R by the number in this chart (e.g., "State Petition 1"):
| No. | Court and Case No. | Denial Date | |
|---|---|---|---|
| 1 | 09/30/14 LD 27 at 16 | Riverside Superior Court# RIC1409469 | 10/9/14LD 28 |
| 2 | 01/26/15LD 29 | 05/8/15LD 33 | |
| 3 | 8/3/16LD 34 | California Supreme Court# S236329 | 10/12/16LD 36 |
| 4 | 11/17/16LD 37 at 7 | Riverside Superior Court# RIC1615904 | 12/29/16LD 38 |
| 5 | 07/27/17LD 39 at 28 | California Court of Appeal# E068832/D072637 | 08/21/17LD 40 |
| 6 | 06/19/18LD 41 at 19 | California Supreme Court# S249579 | 10/31/18LD 42 |
| 7 | 10/18/18(LD 43 at 18, 20) | Riverside Superior Court# RIC1822433 | 11/20/18LD 44 |
| 8 | 01/01/19(LD 45 at 15) | California Court of Appeal# E071969/D075207 | 01/22/19LD 46 |
Because State Petitions 2 and 3 were filed through counsel, the Court uses the filing date from the California appellate courts' online dockets, which are available at: https://appellatecases.courtinfo.ca.gov/. Other filing dates refer to the signature dates on the pro se petitions. See Stillman, 319 F.3d at 1201 (mailbox rule is not available to prisoner represented by counsel).
Two different case numbers indicate that the petition was transferred between divisions of the California Court of Appeal.
IV.
DISCUSSION
A. AEDPA's Statute of Limitations.
A state prisoner ordinarily has one year from the date his conviction becomes final to file a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1)(A). "[T]he judgment from which the AEDPA statute of limitations runs is the one pursuant to which the petitioner is incarcerated." Smith v. Williams, 871 F.3d 684, 687 (9th Cir. 2017) (second amended judgment started new one-year statute of limitations, rendering § 2254 petition timely). Petitioner is incarcerated pursuant to the amended abstract of judgment on December 4, 2013. (LD 47, 48.) That judgment became final when Petitioner's deadline to appeal from it expired sixty days after its entry, i.e., on February 3, 2014. See California Rules of Court, Rule 8.308(a). Petitioner's AEDPA limitations period therefore expired on February 3, 2015, absent tolling. B. Statutory Tolling.
Section 2244(d)(1)(B), (C), and (D) provide alternative dates from which the AEDPA limitations period may run. Petitioner does not invoke any of these provisions.
This is 61 days, because February 2, 2014 was a Sunday. When a litigant's filing deadline falls on a Sunday, it is automatically extended to the next court day. See Cal. Ct. R. 8.60; Cal. Code of Civ. Proc. §§ 12a(a), 15; Cal. Gov't Code § 6700(a)(1); see, e.g., Lopez v. Felker, 536 F. Supp. 2d 1154, 1156-57 (C.D. Cal. 2008) (applying these rules to appeal deadline).
1. Legal Standard.
The AEDPA period of limitation is tolled while a "properly filed" state post-conviction petition is "pending." 28 U.S.C. § 2244(d)(2). This is referred to as statutory tolling. A habeas petition is not "properly filed" under § 2244(d)(2) if it is untimely under state law. Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). Under California law, a habeas petition is timely "if filed within a 'reasonable time.'" Evans v. Chavis, 546 U.S. 189, 192 (2006) (quoting In re Harris, 5 Cal. 4th 813, 828 n.7 (1993)).
To invoke statutory tolling, a state habeas petition must be filed before the AEDPA limitation period expires. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.) (statutory tolling "does not permit the reinitiation of a limitations period that has ended before the state petition was filed," even if the state petition was timely filed under state law), cert. denied, 540 U.S. 924 (2003). The petition remains "pending" for purposes of § 2244(d)(2) "as long as the ordinary state collateral review process is 'in continuance' - i.e., 'until the completion of' that process." Carey v. Saffold, 536 U.S. 214, 219-20 (2002); see also O'Sullivan v. Boerckel, 526 838, 845 (1999) (to exhaust habeas claims, a petitioner must complete one full round of state review). Thus, the petitioner is entitled to "gap" tolling for the "intervals between a lower court decision and a filing of a new petition in a higher court...." Carey, 536 U.S. at 223 (emphasis added); see also Banjo v. Ayers, 614 F.3d 964 (9th Cir. 2010) ("The period between a California lower court's denial of review and the filing of an original petition in a higher court is tolled—because it is part of a single round of habeas relief....").
However, gap tolling is available "only when the petitioner files the later state habeas petition 'within what California would consider a 'reasonable time.'" Lerma v. Lewis, 921 F. Supp. 2d 949, 954 (N.D. Cal. 2013) (quoting Chavis, 546 U.S. at 198). Gap tolling is not available if the gap is too long (i.e., generally exceeding 60 days) and the delay unexplained. See Chavis, 546 U.S. at 193 (federal courts "operate[] on the assumption that ... California's 'reasonable time' standard [does] not lead to filing delays substantially longer than those in States with determinate timeliness rules,'" and other states generally allow 30 to 60 days); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (holding that unexplained filing gaps of 101 and 115 days cut off statutory tolling). "In the absence of (1) clear direction or explanation from the California Supreme Court about the meaning of the term 'reasonable time' in the present context, or (2) clear indication that a particular request for appellate review was timely or untimely, the [federal court] must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness." Chavis, 546 U.S. at 198.
Once a petitioner completes a full round of state habeas review—by filing petitions in the superior court, court of appeal, and California Supreme Court—the petitioner "cease[s] to have an application for post-conviction review pending" within the meaning of § 2244(d)(2). Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003). "[P]eriods between different rounds of collateral attack are not tolled." Banjo, 614 F.3d at 968 (emphasis added).
The Ninth Circuit "employ[s] a two-part test to determine whether the period between the denial of one petition and the filing of a second petition should be tolled." Id. First, the court "ask[s] whether the petitioner's subsequent petitions are limited to an elaboration of the facts relating to the claims in the first petition." Id. at 968-69 (quoting King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003), abrogated on other grounds by Evans v. Chavis, 546 U.S. 189 (2006)). "If the petitions are not related, then the subsequent petition constitutes a new round of collateral attack, and the time between them is not tolled." Id. at 969. "If the successive petition was attempting to correct deficiencies of a prior petition, however, then the prisoner is still making 'proper use of state court procedures,' and habeas review is still pending." Id. (quoting King, 340 F.3d at 823). Second, the court asks whether the later petition was "ultimately denied on the merits or deemed untimely. ... In the former event, the time gap between the petitions is tolled; in the latter event it is not." King, 340 F.3d at 823. Even if the state court "fail[ed] to explicitly decide whether a petition was untimely filed," the federal court must "engage in an inquiry as to whether California courts would have deemed the petition filed within a reasonable time." Banjo, 614 F.3d at 970 (citing Chavis, 546 U.S. at 194, 198).
2. First Round of State Habeas Review.
As discussed above, Petitioner's conviction became final on February 3, 2014. He filed State Petition 1 on September 30, 2014. Between those two dates, 239 days elapsed. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (gap tolling does not cover the time between the date the conviction became final and the filing of the first collateral challenge), overruled on other grounds as stated in Nedds v. Calderon, 678 F.3d 777, 781 (9th Cir. 2012); Conde v. Busby, No. 10-07286-VAP-DTB, 2010 U.S. Dist. LEXIS 112003 at *5-6, 2010 WL 3985136 at *2 (C.D. Cal. Oct. 6, 2010) (same). This left Petitioner with 126 days on his 365-day AEDPA clock.
Because Petitioner initiated his first round of state habeas review prior to February 3, 2015—i.e., the date the AEDPA limitations expired absent tolling—and pursued state habeas review in a hierarchical manner, he is entitled to statutory tolling for the time State Petitions 1 through 3 were pending and the gaps in between, assuming that (a) those petitions were properly filed and, (b) Petitioner did not unreasonably delay between filings. See Carey, 536 U.S. at 219-23; Ferguson, 321 F.3d at 823; Chaffer, 592 F.3d at 1048. The Court finds Petitioner is entitled to statutory tolling for the period when State Petitions 1, 2, and 3 were pending and the "gaps" between them.
None of these State Petitions were denied as untimely by the California courts. (LD 28, 33, 36.) There was a delay of 109 days (about 3 and a half months) between the denial of State Petition 1 on October 9, 2014 (LD 28) and the filing of State Petition 2 on January 26, 2015 (LD 29). There was a delay of 453 days (about 1 year and 2 months) between the denial of State Petition 2 on May 8, 2015 (LD 33) and the filing of State Petition 3 on August 3, 2016 (LD 34). Although these gaps are substantial, the record reveals that Petitioner's attorney Michael Creamer, who filed State Petitions 2 and 3, caused these delays, which were not unreasonable in this specific context.
State Petition 2 raised three claims of error: (1) ineffective assistance of counsel ("IAC") because counsel did not move to dismiss the attempted mayhem offense based on an earlier mistrial; (2) IAC because counsel advised Petitioner and his sister not to testify at Petitioner's second trial; and (3) due process because the state failed to prove every element of attempted mayhem. (LD 32.) When he filed State Petitioner 2, Mr. Creamer requested a stay while he sought the transcripts from Petitioner's first trial. (LD 30; LD 29 at 17-18.) The Court of Appeal eventually denied this request due to counsel's unexplained subsequent delay, as follows:
The first trial's RT is LD 1. The court reporter certificates indicate that the proceedings were transcribed in 2010. (Dkt. 9-2 at 280-85.)
In his petition for writ of habeas corpus, [Petitioner] raises two claims of ineffective assistance of counsel. Shortly after filing his petition, [Petitioner] asked this court to stay consideration of his petition to allow his counsel to obtain additional reporter's transcripts from [P]etitioner's first trial, which resulted in a mistrial. In his stay request, counsel pledged to provide a status update to this court within 10 days. Counsel provided no such update and now, two months after the filing of the stay request and approximately six months from the time counsel declared he began his effort to obtain the transcripts, no transcripts have been filed with this court. Given the absence of any further information to demonstrate that such a delay is not unreasonable, this court will no longer hold consideration of the petition in abeyance.(LD 33 at 1-2.)
The lack of transcripts from Petitioner's first trial was important to the Court of Appeal's ruling. One of Petitioner's IAC claims was based on counsel advising Petitioner and his sister not to testify at the second trial, even though they had testified at the first trial which ended in a hung jury. The Court of Appeal denied this claim for lack of supporting evidence - evidence that might have been provided via transcripts from Petitioner's first trial. (Id. at 2-3 [finding Petitioner had "provide[d] no evidence to support the conclusion that the first jury deadlocked because of his or his sister's testimony" or "to support a finding that counsel had no rational tactical purpose in advising [Petitioner] and his sister not to testify"].)
The prosecutors thought that Petitioner's testimony favored the prosecution; they moved to introduce Petitioner's testimony from the first trial if Petitioner elected not to testify at the second trial. (CT 162.)
State Petition 3 raised the same IAC and due process claims (LD 34), and Mr. Creamer supported State Petition 3 with lengthy "excerpts of record," including transcripts of testimony by Petitioner and his sister from the first trial. (LD 35.) Mr. Creamer explained that he had waited to receive these transcripts before filing State Petition 3. (LD 34 at 9 ¶¶ 22-23.)
On this unique record, the gaps between State Petitions 1, 2, and 3 did not render these State Petitions untimely as a matter of state law. See, e.g., Moore v. Clark, No. 07-0423, 2008 U.S. Dist. LEXIS 11527 at *6-7, 2008 WL 449706 at *3 (E.D. Cal. Feb. 15, 2008) (finding six-month delay reasonable because the petitioner was seeking transcripts from an evidentiary hearing), R&R adopted, 2008 WL 795193 (E.D. Cal. Mar. 25, 2008). The Court therefore finds that Petitioner is entitled to statutory tolling from the filing date of State Petition 1 on September 30, 2014 through the denial of Petition 3 on October 12, 2016. .
Culver v. Director of Corrections, 450 F. Supp. 2d 1135 (C.D. Cal. 2006), on which Respondent relies (Dkt. 8-1 at 13), is distinguishable because the court specifically noted that the delay was "unexplained" and "unjustified." Id. at 1141.
Thus, as of October 12, 2016, Petitioner still had 126 days remaining on his AEDPA clock. This is insufficient tolling to render Petitioner's federal Petition timely, because his federal Petition was not filed until January 22, 2019, i.e., 832 days later. (Dkt. 1 at 21 [signature date].) Accordingly, the Court turns to the other State Petitions.
3. Second Round of State Habeas Review.
In State Petition 4, Petitioner argued that the firearm sentencing enhancement applied to his sentence is not properly applied to convictions for attempted mayhem as a matter of California law. (See LD 37, 38) This claim is unrelated to the IAC and due process claims raised in his first round of State Petitions. Thus, State Petition 4 began a new, second round of state habeas review, and Petitioner is not entitled to gap tolling for the 36 days between when the California Supreme Court denied State Petition 3 (on October 12, 2016) and Petitioner filed State Petition 4 in the Riverside Superior Court (on November 17, 2016). See Banjo, 614 F.3d at 968-69 ("If the petitions are not related, then the subsequent petition constitutes a new round of collateral attack, and the time between them is not tolled."). As of November 17, 2016, 275 days of the AEDPA statute of limitations had run, leaving Petitioner with only 90 days on his AEDPA clock.
Petitioner pursued his second round of habeas review in a hierarchical manner, filing State Petition 4 in the superior court, State Petition 5 in the California Court of Appeal, and State Petition 6 in the California Supreme Court. Even assuming this second round of review is eligible for gap tolling, however, Petitioner is not entitled to it because the gaps between these petitions are too long. Although the state courts did not deny these petitions as untimely (see LD 38, 40, 42), this Court has an independent obligation to assess whether these delays were unreasonable. Chavis, 546 U.S. at 197 (rejecting Ninth Circuit's "presumption ... that an order decided entirely on the merits indicates that the state court did not find the petition to be untimely," and holding that, "without using a merits determination as an 'absolute bellwether' (as to timeliness), the federal court must decide whether the" habeas petition was filed "within what California would consider a 'reasonable time'").
The gap between the denial of State Petition 4 on December 29, 2016 (LD 38) and filing of State Petition 5 on July 27, 2017 (LD 39) was more than 6 months. The gap between the denial of State Petition 5 on August 21, 2017 (LD 40) and the filing of State Petition 6 on June 19, 2018 (LD 41) was more than 9 months. Unlike the gaps between the first-round petitions, nothing in the record explains this delay. The content of State Petitions 4 and 5 are nearly identical (compare LD 37 and 39), such that it should not have taken so long to file State Petition 5. Petitioner should have been aware of the one-year AEDPA limitations period because it was discussed in his counseled state habeas petitions. (LD 34 at 8 ["The convicted state prisoner must proceed to the Federal courts within one year of res judicata pursuant 23 to 28 U.S.C. section 2244(d)(l) ...."].) Compare Chavis, 546 U.S. at 201 ("We have found no authority suggesting, nor found any convincing reason to believe, that California would consider an unjustified or unexplained 6-month filing delay 'reasonable.'"). Petitioner's opposition to the present motion to dismiss makes no attempts to explain these gaps. (Dkt. 12.)
In sum, with some statutory tolling, Petitioner's AEDPA filing deadline expired on March 29, 2017, i.e., 90 days after State Petition 4 was denied. His federal Petition (constructively filed in January 2019) was filed more than 20 months late, absent equitable tolling. C. Equitable Tolling.
The AEDPA statute of limitations is subject to equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010). To qualify, a petitioner must demonstrate: (1) that he has been pursuing his rights diligently, and (2) that some "extraordinary circumstance" stood in his way that prevented him from timely filing. Id. at 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The "extraordinary circumstance" requirement "suggests that an external force must cause the untimeliness, rather than ... merely oversight, miscalculation or negligence on [the petitioner's] part, all of which would preclude the application of equitable tolling." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (internal quotations and citation omitted). "The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness, ... and that the extraordinary circumstances made it impossible to file a petition on time[.]" Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal quotations, brackets, and citations omitted). A litigant bears a heavy burden to establish that equitable tolling applies, because "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citation omitted).
Initially, Petitioner did not argue that he should receive equitable tolling. (Dkt. 12 at 1 ["Petitioner is uncertain as to equitable tolling."].) Indeed, following the expiration of his AEDPA filing deadline in March 2017, he filed four other state petitions before filing his federal Petition. This suggests that Petitioner was able to file a federal petition but chose not to do so, perhaps because he believed further state petitions would continue to toll the AEDPA deadline. Misunderstanding or ignorance of federal habeas procedures, however, is not a basis for obtaining equitable tolling. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding that the petitioner's "inability correctly to calculate the limitations period is not an extraordinary circumstance warranting equitable tolling" because "a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance").
In his objections, Petitioner argues that he is entitled to equitable tolling because the attorney who assisted him in his first round of state habeas review "abandoned" him and he did not know the AEDPA deadline. (Dkt. 20 at 6.) After the attorney finished one round of review, however, Petitioner promptly started the second round pro se. (See, chart above of state petitions and filing dates.) Thus, Petitioner did not miss the AEDPA deadline because he was waiting for his attorney to act on his behalf. Moreover, Petitioner attached to his objections a 2014 letter from a state bar staff attorney telling him the AEDPA deadline and advising him to file any federal petition "well in advance." (Dkt. 20 at 31.) Petitioner also attached a letter from his appellate counsel advising him to file only one round of state habeas review and telling him the AEDPA deadline. (Id. at 32-36.) Petitioner is not entitled to equitable tolling. D. Actual Innocence.
There is an equitable exception to the AEDPA's statute of limitations for prisoners who present new, reliable evidence of actual innocence. Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011) (citing Schlup v. Delo, 513 U.S. 298 (1995)); see also McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). Specifically, a petitioner must show "that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Lee, 653 F.3d at 938 (quoting Schlup, 513 U.S. at 327).
Petitioner argues that he is actually innocent of attempted mayhem because his second trial on that count was "illegal" for two reasons. (Dkt. 12 at 4.) First, he argues that he was improperly tried for attempted mayhem even though a magistrate judge dismissed the charge for lack of probable cause. (Id. at 5.) He argues that this violated California Penal Code sections 738-39 and 871.5. (Id.) Second, he argues that the charging documents were not properly sworn under penalty of perjury. (Id. [alleging that CT 76-78 and CT 93-95, i.e. the information and amended information, were "not true and correct under penalty of perjury"].)
In September 2008, Petitioner was charged via a sworn amended felony complaint. (CT 18, 22.) A magistrate judge dismissed the attempted mayhem charge for lack of probable cause. (CT 20, 72.) Although the record does not contain a motion by the prosecution to reinstate this charge under California Penal Code section 875.1, the charge appeared in a subsequent information and amended information (CT 76-78, 93). In February 2009, Petitioner's counsel moved to dismiss the attempted mayhem charge under California Penal Code section 995, but this motion was denied. (CT 89.) Petitioner was eventually convicted of attempted mayhem. Santana, 56 Cal. 4th at 1002.
Petitioner does not cite any California procedural rule requiring that an information be signed under penalty of perjury. The authorities he cites describe how to sign documents under penalty of perjury but do not require any particular document to be signed under penalty of perjury. See Cal. Pen. Code § 959.1; Cal. Code Civ. Proc. §§ 210.5 and 28 U.S.C. § 1746. Although California Penal Code section 806 requires felony complaints to be filed "under oath," California Penal Code section 739 only requires informations to be "subscribed" by the district attorney, which means signed not sworn.
Petitioner attempts to frame these arguments as an actual innocence claim under Schlup by arguing that no reasonable jury would have convicted him for attempted mayhem had the jurors known that the magistrate previously dismissed that count for lack of probable cause and that it was refiled in an unsworn information. (Dkt. 12 at 6.) Petitioner contends this is reliable, new evidence that was not presented to the jury at his trial. (Id.)
The magistrate's ruling was not "evidence." Petitioner has not identified any new, reliable evidence that he was not, in fact, the person who shot Vallejo three times. His arguments, at best, raise a claim of legal error under California law; they are not claims of factual innocence. See Bousley v. United States, 523 U.S. 614, 623 (1998) ("It is important to note in this regard that 'actual innocence' means factual innocence, not mere legal insufficiency."); Lynch v. Felker, No. 08-02962, 2009 U.S. Dist. LEXIS 78344 at *14, 2009 WL 2871051 at *5 (N.D. Cal. Sept. 1, 2009) (finding claim "that the prosecutor reneged on a bargain to pay [a witness] in exchange for her testimony" was "a serious allegation of prosecutorial misconduct, but, if true, ... represent[ed] a procedural error" rather than a claim of actual innocence under Schlup).
In his objections, Petitioner writes that there was "no evidence of attempted mayhem" presented at trial, and "The fact that Vallejo was shot by Petitioner makes him guilty of Penal Code § 245(a)(2) [assault with a deadly weapon], but not of § 664 [mayhem]/§ 203 [attempt]." (Dkt. 20 at 7.) By admitting that he shot Vallejo, Petitioner dooms his factual innocence arguments. E. Petitioner's Other Arguments.
1. Waiver.
In his opposition to the motion to dismiss, Petition argues that Respondent has "opened to door" to the merits by discussing the facts of his case, thereby waiving the AEDPA statute of limitations. (Dkt. 12 at 4.) Respondent moved to dismiss the Petition as untimely (Dkt. 8) and nothing in the motion waives the timing limits imposed by AEDPA. Compare Collins v. Hedgepeth, No. 10-1131, 2012 U.S. Dist. LEXIS 185625 at 11-12, 2012 WL 7006132 at *4 (C.D. Cal. July 16, 2012) (finding that the respondent waived timeliness by affirmatively stating in the answer that the petition "appear[ed] timely"), R&R adopted, 2013 U.S. Dist. LEXIS 1503, 2013 WL 435476 (C.D. Cal. Feb. 4, 2013).
2. Fraud.
Petitioner argues that the government's "fraud on the Court" excuses any delay on his part, citing the information and amended information in his underlying criminal case. (Dkt. 12 at 5 [citing CT 76-78 and CT 93-95].) This is apparently another iteration of his argument that he could only legally be prosecuted by an amended information signed under penalty of perjury. Even if this was a procedural error under state law—something Petitioner has not demonstrated—it does not constitute fraud.
3. Federal Rules.
Petitioner argues that his conviction violated several Federal Rules of Criminal and Civil Procedure. (Dkt. 12 at 7, 9.) Petitioner was tried in California state court where the Federal Rules of Criminal and Civil Procedure do not apply. See Fed. R. Crim. P. 1(a) ("These rules govern the procedural in all criminal proceedings in the United States district courts, the United States courts of appeals, and the Supreme Court of the United States."); Fed. R. Civ. P. 1 ("These rules govern the procedural in all civil actions and proceedings in the United States District Courts....").
4. Rules Governing § 2254 Cases.
In his Motion for Leave for Jurisdiction, filed concurrently with his federal Petition, Petitioner cites the original, 1976 Advisory Committee notes to Rule 9(a) of the Rules Governing § 2254 Cases in the District Courts for the premise that § 2254 has no statute of limitations and federal district courts must consider the equities before dismissing a petition as untimely. (Dkt. 2 at 1.) This is no longer good law. After AEDPA was passed in 1996, subsection (a) of Rule 9 was "deleted as unnecessary in light of the applicable one-year statute of limitations" enacted in AEDPA. See Advisory Committee Notes to the 2004 Amendments, Rules Governing § 2254 Cases in the District Courts. Older versions of Rule 9 have no bearing on the timeliness of Petitioner's post-AEDPA federal Petition. Now, to determine timeliness, district courts consider the equitable matters discussed above (i.e., equitable tolling and actual innocence), but they do not consider whether the delay caused no prejudice to the state or whether the state has unclean hands, as Petitioner argues.
V.
CONCLUSION
The Petition should be dismissed as untimely and Petitioner's Motion for Leave of Court for Jurisdiction (Dkt. 2) should be denied as moot. DATED: May 14, 2019
/s/_________
KAREN E. SCOTT
United States Magistrate Judge