Opinion
CV 20-10378-JLS (E)
04-20-2021
ALBERTO HERNANDEZ CARBAJAL, Petitioner, v. WARDEN, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Josephine L. Staton, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On November 9, 2020, Petitioner filed a “Petition for Writ of Habeas Corpus By a Person in State Custody, ” which bears a signature date of November 4, 2020. On January 26, 2021, Respondent filed a “Motion to Dismiss Petition for Writ of Habeas Corpus, etc.” (“Motion to Dismiss”). On April 12, 2021, Petitioner filed an “Objection to the ‘Motion to Dismiss, '” which constitutes Petitioner's opposition to the Motion to Dismiss (“Objection”).
BACKGROUND
On January 14, 2003, pursuant to a plea agreement, Petitioner pled guilty in the Los Angeles County Superior Court to second degree murder (Petition, ECF Dkt. No. 1, p. 2; Respondent's Lodgement 1, ECF Dkt. No. 11-1, p. 4, 6). On the same day, the court sentenced Petitioner to a term of fifteen years to life plus restitution fines and victim restitution (id., pp. 4-5). Petitioner did not appeal.
Although the Petition appears to allege that Petitioner filed an appeal, the Petition references a habeas corpus petition filed in the California Court of Appeal rather than a direct appeal (see Petition, ECF Dkt. No. 1, pp. 2-3).
On April 10, 2009, Petitioner filed a motion for dismissal of restitution in the Superior Court, which the court denied on April 13, 2009 (id., p. 5). On October 20, 2010, the Superior Court received and denied a motion for a reduction of Petitioner's sentence (id.). On December 29, 2010, the Superior Court denied a request for a certificate of probable cause on the ground that “the time to file for an appeal ha[d] run out” (id., p. 6). On October 3, 2011, the Superior Court denied Petitioner's motion for modification of the restitution fine (id.).
The record does not contain this request. In California, a criminal defendant may not appeal from a judgment based on a guilty plea without seeking and obtaining a certificate of probable cause from the trial court. See Cal. Penal Code § 1237.5.
On May 29, 2019 Petitioner filed a habeas corpus petition in the Superior Court (id., pp. 7, 9). On July 2, 2019, the Superior Court denied the petition in a reasoned order (id., pp. 8-9).
The record does not contain this petition.
On August 12, 2019, Petitioner sent a document to the Superior Court indicating a desire to appeal the denial of his habeas corpus petition (id., p. 9). In response, the Superior Court sent Petitioner an appeal packet (id.).
On August 23, 2019, Petitioner filed a second habeas corpus petition in the Superior Court (Respondent's Lodgment 1, ECF Dkt. No. 11-2, p. 10).
The record does not contain this petition.
Also on August 23, 2019, Petitioner filed a purported notice of appeal, which later was received in the California Court of Appeal (Respondent's Lodgment 1, ECF DKt. No. 11-1, p. 10; Respondent's Lodgment 2, ECF Dkt. No. 11-2). On October 3, 2019, the Court of Appeal dismissed the appeal on the ground that "[n]o appeal lies by a defendant from an order of the superior court denying a writ of habeas corpus. . . .” (Respondent's Lodgment 2, ECF Dkt. No. 11-2) (citations and quotations omitted).
On October 16, 2019, the Superior Court denied Petitioner's second habeas corpus petition for the reasons stated in the court's July 2, 2019 order (Respondent's Lodgment 1, ECF Dkt. No. 11-1, p. 11). On December 5, 2019, the Superior Court denied reconsideration (id., p. 12).
In the meantime, on November 5, 2019, Petitioner filed a petition for review in the California Supreme Court, in case number S258693 (Respondent's Lodgment 4, ECF Dkt. No. 11-4). This petition sought review of the Court of Appeal's October 3, 2019 dismissal. On December 11, 2019, the California Supreme Court denied the petition (Respondent's Lodgment 2, ECF Dkt. No. 11-2, p. 2; Respondent's Lodgment 5, ECF Dkt. No. 11-5).
In the meantime, on November 20, 2019, Petitioner filed an appeal from the Superior Court's October 16, 2019 order (Respondent's Lodgment 3, ECF Dkt. No. 3). On January 2, 2020, the Court of Appeal dismissed the appeal as duplicative(id.). According to Petitioner, the United States Supreme Court rejected Petitioner's petition for writ of certiorari as untimely on October 14, 2020 (Petition, ECF Dkt. No. 1, p. 5).
The record does not contain any such petition or any related order of the United States Supreme Court, and the Court has not located any such petition or order on online databases.
PETITIONER'S CONTENTIONS
Petitioner contends:
1. Petitioner's guilty plea allegedly is invalid because Petitioner's counsel assertedly failed to conduct an adequate pretrial investigation (Ground One);
2. Because Petitioner allegedly committed the crime at the age of fifteen, Petitioner's case assertedly should have “stayed in juvenile court” under California Senate Bill 260 and People v. Franklin, 63 Cal.4th 261, 268, 202 Cal.Rptr.3d 496, 370 P.3d 1053 (2016), cert. denied, 137 S.Ct. 573 (2016) (Ground Two); and
In 2012, the United States Supreme Court held unconstitutional a mandatory sentence of life without possibility of parole for a murder committed by a juvenile. See Miller v. Alabama, 567 U.S. 460 (2012). In 2013, the California Legislature passed Senate Bill 260 in response to Miller v. Alabama. See Cal. Stats. 2013, c. 312 (S.B. 260); People v. Franklin, 63 Cal.4th 261, 268, 202 Cal.Rptr.3d 496, 370 P.3d 1053 (2016), cert. denied, 137 S.Ct. 573 (2016). Among other things, Senate Bill 260 enacted California Penal Code section 3051, which provides that, under certain circumstances, an individual serving a sentence imposed for a crime committed when the individual was under the age of eighteen may obtain a juvenile offender parole hearing. Senate Bill 260 also amended California Penal Code section 4801 to require the California Board of Parole Hearings to “give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity.” See Cal. Penal Code § 4801(c).
In People v. Franklin, the California Supreme Court held that, because the sentencing court imposed sentence for a murder committed by a juvenile defendant before the enactment of Senate Bill 260, the case should be remanded to afford the defendant the opportunity to make a record of information relevant to a potential future juvenile offender parole hearing. People v. Franklin, 63 Cal.4th at 283-84.
3. The sentencing court allegedly breached the plea agreement by assertedly failing to consider Petitioner's ability to pay restitution (Ground Three).
RESPONDENT'S CONTENTIONS
Respondent contends:
1. Petitioner allegedly has not named the proper Respondent;
2. The Petition allegedly is untimely;
3. Ground One of the Petition allegedly is barred by Tollett v. Henderson, 411 U.S. 258 (1973); and
4. Grounds Two and Three allegedly do not state claims cognizable on federal habeas review.
DISCUSSION
For the reasons discussed below, the applicable statute of limitations bars the present Petition.
The alleged failure to name the proper Respondent is a remediable defect. The Court deems the Petition amended to name as Respondent the Warden at Petitioner's current place of incarceration.
I. The Statute
The “Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners:
(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 -
(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;
(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;
(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
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(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.
“AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis.” Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).
II. Accrual
Because Petitioner did not file a timely direct appeal, his conviction would have became final on March 15, 2003, (the sixtieth day after sentencing), had that day not been a Saturday. See Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006); People v. Knauer, 206 Cal.App.3d 1124, 1127 n.2, 253 Cal.Rptr. 910 (1988); former Cal. Ct. R. 31(d). Petitioner's conviction therefore became final on Monday, March 17, 2003. See Cal. Code Civ. Proc. §§ 12, 12a, 135. Petitioner's subsequent attempt to file an untimely notice of appeal did not affect the running of the statute of limitations. See Randle v. Crawford, 604 F.3d 1047, 1054-55 (9th Cir.), cert. denied, 562 U.S. 969 (2010) (petitioner's attempt to file an untimely notice of appeal does not delay the commencement of the one-year period). Therefore, the statute of limitations commenced running no later than March 18, 2003, unless subsections B, C or D of 28 U.S.C. section 2244(d)(1) apply in the present case. See 28 U.S.C. § 2244(d)(1)(A); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge).
Effective January 1, 2004, the substance of former California Rule of Court 31(d) concerning the time for filing a notice of appeal in criminal cases was moved to former Rule 30.1. As of January 1, 2007, California Rule of Court 8.308(a) superseded former California Rule of Court 30.1 with regard to appeals in criminal cases.
Section 2244(d)(1)(B) is inapplicable. To warrant delayed accrual under section 2244(d)(1)(B), a petitioner must show that illegal conduct by the State or those acting for the State “made it impossible for him to file a timely § 2254 petition in federal court.” See Ramirez v. Yates, 571 F.3d 993, 1000-01 (9th Cir. 2009). A petitioner “must satisfy a far higher bar than that for equitable tolling.” Ramirez v. Yates, 571 F.3d at 1000. A petitioner is entitled to delayed accrual under subsection (d)(1)(B) only if the alleged impediment “altogether prevented him from presenting his claims in any form, to any court.” Id. at 1001 (emphasis original; citation omitted). Petitioner does not contend, and the record does not show, that any illegal conduct by the State or those acting for the State made it impossible for Petitioner to file the present Petition timely.
Subsection C of section 2244(d)(1) also does not furnish an accrual date later than the date Petitioner's conviction became final. Petitioner does not assert any claim based on a constitutional right “newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” See Dodd v. United States, 545 U.S. 353, 360 (2005) ( construing identical language in section 2255 as expressing “clear” congressional intent that delayed accrual inapplicable unless the United States Supreme Court itself has made the new rule retroactive); Tyler v. Cain, 533 U.S. 656, 664-68 (2001) (for purposes of second or successive motions under 28 U.S.C. section 2255, a new rule is made retroactive to cases on collateral review only if the Supreme Court itself holds the new rule to be retroactive); Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002), cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity principles of Teague v. Lane, 489 U.S. 288 (1989) to analysis of delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)). Petitioner's reliance on the California Supreme Court's decision in People v. Franklin is unavailing. See White v. Eldridge, 2020 WL 853860, at *2 (C.D. Cal. Jan. 10, 2020), adopted, 2020 WL 833519 (C.D. Cal. Feb. 20, 2020) (case decided by the California Supreme Court does “not trigger § 2244(d)(1)(C)”); Hill v. Tampkins, 2017 WL 2240208, at *3 (C.D. Cal. Feb. 22, 2017), adopted, 2017 WL 2240209 (C.D. Cal. May 22, 2017) (no delayed accrual based on recent California Supreme Court case which was “not a decision by the United States Supreme Court, and [did] not define a new federal constitutional right, as § 2244(d)(1) requires.”);
Under subsection D of section 2244(d)(1), the “‘due diligence' clock starts ticking when a person knows or through diligence could discover the vital facts, regardless of when their legal significance is actually discovered.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir.), cert. denied, 568 U.S. 1053 (2012); Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001); see also United States v. Pollard, 416 F.3d 48, 55 (D.D.C. 2005), cert. denied, 547 U.S. 1021 (2006) (habeas petitioner's alleged “ignorance of the law until an illuminating conversation with an attorney or fellow prisoner” does not satisfy the requirements of section 2244(d)(1)(D)).
In Ground One, Petitioner alleges, in conclusory fashion, that Petitioner's counsel assertedly failed to conduct an adequate pretrial investigation. Petitioner does not describe what investigation counsel should have undertaken that might have affected Petitioner's decision to enter a guilty plea. Petitioner does not assert an entitlement to delayed accrual based on any purported inability to discover, in the exercise of diligence, the essential factual predicates underlying his claim of alleged ineffective assistance of counsel. No. later than the time Petitioner's conviction became final, Petitioner knew or should have known what his counsel had done or had failed to do.
With respect to Ground Two, Petitioner's reliance on People v. Franklin and Senate Bill 260 does not entitle Petitioner to delayed accrual under subsection D of section 2244(d)(1). The running of the statute of limitations does not await the issuance of judicial decisions that help would-be petitioners recognize the legal significance of particular predicate facts. See Shannon v. Newland, 410 F.3d 1083, 1089 (9th Cir. 2005), cert. denied, 546 U.S. 1171 (2006) (intervening state court decision establishing proposition of law arguably helpful to petitioner does not constitute a “factual predicate” under section 2244(d)(1)(D)); Knight v. Spearman, 2021 WL 490282, at *8 (E.D. Cal. Feb. 10, 2021) (enactment of state law entitling certain inmates to youthful offender parole hearings did not entitle petitioner to delayed accrual); Magana v. California, 2019 WL 1714549, at *3 (C.D. Cal. Feb. 22, 2019), adopted, 2019 WL 1676014 (C.D. Cal. Apr. 17, 2019), appeal dism'd, 2019 WL 6509583 (9th Cir. Sept. 19, 2019) (enactment of state law granting sentencing courts discretion to strike firearm enhancements did not entitle petitioner to delayed accrual); Soja v. Hornbeck, 2010 WL 3118716, at *2 (N.D. Cal. Aug. 2, 2010) (“a favorable legal decision cannot function as a factual predicate” under section 2244(d)(1)(D)); Wilson v. Sisto, 2008 WL 4218487, at *3 (E.D. Cal. Sept. 5, 2008) (“new case law does not qualify as a “factual predicate” under § 2244(d)(1)”) (citation omitted).
Finally, with respect to Ground Three of the Petition, Petitioner knew or should have known, not later than his sentencing, the factual predicates underlying his claim that the sentencing court purportedly failed to consider Petitioner's inability to pay in determining restitution.
In any event, this Court lacks jurisdiction over Petitioner's challenge to the restitution orders. See Bailey v. Hill, 599 F.3d 976, 982-83 (9th Cir. 2010) (custody requirement of 28 U.S.C. section 2254 not satisfied where prisoner challenged only a restitution fine, although prisoner was serving a custodial sentence imposed in addition to the fine).
Accordingly, Petitioner is not entitled to delayed accrual under subsection D of section 2244(d)(1). Hence, the statute of limitations began running on March 18, 2003 and expired on March 17, 2004. Petitioner filed the present Petition many years later. Absent tolling or an equitable exception, the Petition is untimely.
III. Statutory Tolling
Section 2244(d)(2) tolls the statute of limitations during the pendency of “a properly filed application for State post-conviction or other collateral review.” In the present case, Petitioner filed his first state habeas corpus petition in May of 2019, over fifteen years after the limitations period expired. Habeas corpus petitions filed in state court after the expiration of the federal statute of limitations cannot revive or otherwise toll the statute. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) (“section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed”); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003) (filing of state habeas petition “well after the AEDPA statute of limitations ended” does not affect the limitations bar); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 (2000) (“[a] state-court petition . . . that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled”).
For the same reason, even assuming arguendo that Petitioner's various motions filed in the Superior Court in 2009, 2010 and 2011 constituted “properly filed application[s] for State post-conviction or other collateral review with respect to the pertinent judgment or claim” within the meaning of section 2244(d)(2), none of these motions could entitle Petitioner to statutory tolling. See Ferguson v. Palmateer, 321 F.3d at 823; Jiminez v. Rice, 276 F.3d at 482.
In his Objection, Petitioner appears to assert an entitlement to statutory tolling during the pendency of his application to file a belated appeal (Objection, ECF Dkt. No. 17, p. 2). As indicated above, on December 29, 2010, the Superior Court denied as untimely Petitioner's request for a certificate of probable cause (Respondent's Lodgement 1, ECF Dkt. No. 11-1, p. 6). The record does not indicate the date Petitioner filed the request.
Petitioner cites an Eleventh Circuit case which held that, under Florida state law, a motion to file a belated appeal was not an application for state court collateral review within the meaning of section 2244(d)(2). See Espinosa v. Secretary, Dep't of Corrections, 804 F.3d 1137 (11th Cir. 2015). In its decision, the Eleventh Circuit cited out-of-circuit cases for the proposition that, in those jurisdictions, such a motion can warrant tolling where the state court grants the motion. See id. at 1142.
For at least three reasons, this Eleventh Circuit case does not aid Petitioner. First, unlike in the cases cited by the Eleventh Circuit, the Superior Court did not grant the right to pursue a belated appeal. Rather, the Superior Court denied Petitioner's request as untimely. Second, under California law, a request for a certificate of probable cause cannot be a “properly filed application for State post-conviction or other collateral review” within the meaning of section 2244(d)(2). Rather, such a request is part of the direct appeal process. See Espinoza v. Dexter, 2010 WL 891146, at *4 (C.D. Cal. Mar. 8, 2010) (citations omitted) (petitioner's request for certificate of probable cause and motion to file belated appeal “were part of the direct appeal process” and did not entitle petitioner to statutory tolling). Third, and in any event, the record does not show that Petitioner filed his request for a certificate of probable cause before the statute of limitations expired in 2004. It is highly improbable that he did so, given the December 29, 2010 date of the Superior Court's denial of the request. As indicated above, any applications for state collateral review filed after the expiration of the limitations period cannot revive or otherwise toll the statute. See Ferguson v. Palmateer, 321 F.3d at 823; Jiminez v. Rice, 276 F.3d at 482.
For the foregoing reasons, Petitioner is not entitled to statutory tolling.
IV. Equitable Tolling
The federal statute of limitations is also subject to equitable tolling “in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010) (citations omitted). “[A] ‘petitioner' is entitled to ‘equitable tolling' only if he shows ‘(1) that he has been pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); accord Menominee Indian Tribe of Wisconsin v. United States, 577 U.S. 250, 255-57 (2016); see also Lawrence v. Florida, 549 U.S. 327, 336 (2007). The second prong of this test “is met only where the circumstances that caused a litigant's delay are both extraordinary and beyond [his] control.” Menominee Indian Tribe of Wisconsin v. United States, 577 U.S. at 257 (footnote omitted) (applying Holland v. Florida).
The threshold necessary to trigger equitable tolling “is very high, lest the exceptions swallow the rule.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 558 U.S. 897 (2009) (citations and internal quotations omitted). Petitioner bears the burden to prove equitable tolling. See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009). Petitioner must show that the alleged “extraordinary circumstances” were the “cause of his untimeliness.” Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006), cert. denied, 549 U.S. 1317 (2007) (brackets in original; quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)).
In the Objection, Petitioner generally asserts an entitlement to equitable tolling, but alleges no facts supporting this assertion. No. basis for equitable tolling appears on the record. To the extent Petitioner may contend that he was pro se, ignorant of the law and without resources, such allegations are insufficient to justify equitable tolling. See Waldron-Ramsey v. Pacholke, 556 F.3d at 1013 n.4 (“we have held that a pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling”) (citation omitted); Ford v. Pliler, 590 F.3d 782, 789 (9th Cir. 2009), cert. denied, 562 U.S. 843 (2010) (lack of legal sophistication insufficient); Loza v. Soto, 2014 WL 1271204, at *6 (C.D. Cal. Mar. 26, 2014) (“To allow equitable tolling based on the fact that most prisoners do not have legal knowledge or training would create a loophole that would negate the intent and effect of the AEDPA limitation period.”).
Moreover, equitable tolling requires a demonstration of diligence. Petitioner's many years of inactivity manifestly demonstrate a lack of diligence. Petitioner is not entitled to equitable tolling.
V. “Actual Innocence”
“[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . [or] expiration of the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); see also Lee v. Lampert, 653 F.3d 929, 934-37 (9th Cir. 2011) (en banc). The Court must apply the standards for gateway actual innocence claims set forth in Schlup v. Delo, 513 U.S. 298 (1995) (“Schlup”). See McQuiggin v. Perkins, 569 U.S. at 386. “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror [or other trier of fact], acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. (quoting Schlup, 513 U.S. at 329).
In order to make a credible claim of actual innocence, a petitioner must “support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324; see also Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003), cert. denied, 541 U.S. 998 (2004) (holding that “habeas petitioners may pass Schlup's test by offering ‘newly presented' evidence of actual innocence”); Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (“[A] claim of actual innocence must be based on reliable evidence not presented at trial.”).
Petitioner has not argued the actual innocence exception. Petitioner has not submitted any evidence, much less new evidence, to demonstrate his actual innocence of the matters as to which he pled guilty. Morever, Petitioner's guilty plea tends to refute any claim of actual innocence. See Johnson v. Medina, 547 Fed.Appx. 880, 885 (9th Cir. 2013) (petitioner's plea “simply undermine[d]” his claim of actual innocence); Chestang v. Sisto, 522 Fed.Appx. 389, 390 (9th Cir.), cert. denied, 571 U.S. 1012 (2013) (petitioner's plea “seriously undermine[d]” his claim of actual innocence); Stonebarger v. Williams, 458 Fed.Appx. 627, 629 (9th Cir. 2011), cert. denied, 566 U.S. 927 (2012) (denying certificate of appealability on claim of actual innocence, where no reasonable juror would deem petitioner to be actually innocent in light of his confession, his guilty plea and the lack of any facts inconsistent with guilt); People v. McNabb, 228 Cal.App.3d 462, 470-71, 279 Cal.Rptr. 11 (1991) (“the issue of guilt or innocence is waived by a guilty plea”).
In Smith v. Baldwin, 510 F.3d 1127, 1140 n.9 (9th Cir. 2007) (en banc), cert. denied, 555 U.S. 830 (2008), the Ninth Circuit flagged but declined to decide the issue of when, if ever, an “actual innocence” gateway claim can be available to a petitioner who pled guilty or no contest.
Therefore, Petitioner is not entitled to an actual innocence equitable exception to the statute of limitations. The petition is untimely.
In light of this conclusion, the Court need not, and does not, consider the other issues raised in the Motion to Dismiss.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) granting the Motion to Dismiss; and (3) denying and dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No. notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.