Opinion
Marcos Ceras, Petitioner, Pro se, Calipatria, CA.
R. GARY KLAUSNER, UNITED STATES DISTRICT JUDGE. Arthur Nakazato, United States Magistrate Judge.
ORDER DISMISSING HABEAS PETITION
R. GARY KLAUSNER, UNITED STATES DISTRICT JUDGE
Before the Court is a petition for writ of habeas corpus by a person in state custody pursuant to 28 U.S.C. § 2254 (" Petition") brought by Marcos Ceras (" Petitioner"), a state prisoner proceeding pro se . For the reasons discussed below, the Petition is dismissed with prejudice because the Court finds it is time-barred and procedurally barred.
1. BACKGROUND
Petitioner was convicted, following a jury trial in the California Superior Court for Los Angeles County, of attempted murder, shooting at an inhabited dwelling, and assault with a firearm, with findings that he personally fired a gun and personally inflicted great bodily injury. Petitioner was sentenced to a term of ten years and eight months, plus fifty years to life, in state prison (case no. PA047668). The pending Petition raises six claims challenging Petitioner's judgment of conviction.
Pursuant to the Court's duty to screen habeas petitions, the Magistrate Judge found it plainly appeared from the face of the Petition that this action was barred by the one-year statute of limitations of the Anti-Terrorism and Effective Death Penalty Act of 1996 (" AEDPA"). 28 U.S.C. § 2244(d)(1), as well as the doctrine of procedural default. Accordingly, on December 18, 2014, the Magistrate Judge issued an order to show cause that notified Petitioner the action appeared to be time-barred absent some basis for tolling or an alternative start to AEDPA's one-year limitations period under 28 U.S.C. § 2244(d)(1)(B)-(D), and procedurally barred. (12/18/14 Order to Show Cause re Dismissal of Petition for Writ of Habeas Corpus by a Person in State Custody as Time-barred (" OSC") [8].) The OSC explained the various bases for tolling and directed Petitioner to show cause why this action should not be dismissed as time-barred and/or procedurally barred by filing a written response no later than January 6, 2015. (OSC at 4-14.)
Petitioner has filed his Response to the OSC (" Response") [11], erroneously titled as an " Opposition." The matter now stands submitted.
2. DISCUSSION
2.1 Standard of Review
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (" Habeas Rules"), 28 U.S.C. foll. § 2254, requires a judge to " promptly examine" a habeas petition and " [i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Local Rule 72-3.2 of this Court also provides " [t]he Magistrate Judge promptly shall examine a petition for writ of habeas corpus, and if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief, the Magistrate Judge may prepare a proposed order for summary dismissal and submit it and a proposed judgment to the District Judge." C.D. Cal. R. 72-3.2.
An untimely habeas petition may be dismissed sua sponte if the court gives the petitioner adequate notice and an opportunity to respond. Day v. McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006); Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir. 2001).
As for procedural default, " a habeas court. . . should exercise its discretion to raise procedural default sua sponte if doing so furthers" the interests of comity, federalism, and judicial efficiency. Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998); see also Windham v. Merkle, 163 F.3d 1092, 1100-01 (9th Cir. 1998). This principle " applies with even stronger force where, as here, the State has not waived the defense" because it has not yet been served with the petition or filed any response. Boyd, 147 F.3d at 1128. Where the procedural default is " easily identifiable on the face of the petition, " it would " waste scarce judicial resources for the district court to cause the facially defective petition to be served on the State and to entertain the State's ensuing motion to dismiss." Id. However, before summarily dismissing a petition as procedurally barred, the court must give a petitioner notice and an opportunity to respond, and must make clear to a pro se petitioner the procedural default at issue and the consequences for failing to respond. Id.
2.2 Statute of Limitations
The Petition is governed by AEDPA, which establishes a one-year statute of limitations for state prisoners to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). In most cases, the limitations period is triggered by " the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
The Petition and Petitioner's relevant state court records establish the following facts. On March 23, 2012, Petitioner was sentenced for the above offenses. On April 17, 2013, the California Court of Appeal affirmed the judgment (case no. B240200). On July 10, 2013, the California Supreme Court then denied further review (case no. S210801). Petitioner did not file a petition for certiorari in the United States Supreme Court. (Pet. at 2-3; state court records; see also Supreme Court Docket, available on the Internet at http://www.supremecourt.gov.)
The Court takes judicial notice of Internet records relating to this action in the state appellate courts (available at http://appellatecases.courtinfo.ca.gov) (" state court records"). See Smith v. Duncan, 297 F.3d 809, 815 (9th Cir. 2002) (federal courts may take judicial notice of related state court documents), overruled on other grounds as recognized in Cross v. Sisto, 676 F.3d 1172 (9th Cir. 2012).
Therefore, for purposes of AEDPA's limitations period, Petitioner's judgment became final on October 8, 2013, the ninetieth day after the state high court denied his petition for review and the last day for him to file a petition for certiorari with the Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The statute of limitations then started to run the next day, on October 9, 2013, and ended on October 9, 2014. 28 U.S.C. § 2244(d)(1)(A); see also Patterson v. Stewart, 251 F.3d 1243, 1245-47 (9th Cir. 2001) (the limitations period begins to run on the day after the triggering event under Fed.R.Civ.P. 6(a)). Petitioner did not constructively file his pending Petition until November 19, 2014 -- forty-one days after the expiration of the limitations period.
Pursuant to the " prison mailbox rule, " a pro se prisoner's federal habeas petition is deemed to be filed on the date the prisoner delivers the petition to prison authorities for mailing to the clerk. Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); see also Habeas Rule 3(d). The Court finds Petitioner constructively filed the Petition by delivering it to the prison mail system on November 19, 2014, which is the date handwritten by a prison official on the back of the envelope containing the Petition.
Accordingly, absent some basis for tolling or an alternative start date to the limitations period under 28 U.S.C. § 2244(d)(1), the pending Petition is time-barred.
In his Response, Petitioner contends the Court has miscalculated the limitations period. (Resp. at 6.) However, Petitioner not only fails to provide any support for his assertion, his own calculation of the limitations period concludes that it ended on October 8, 2014, one day before it actually ended. (Resp. at 2.) The Court finds the OSC correctly reflected that AEDPA's limitations period commenced on October 9, 2013, and ended on October 9, 2014, and Petitioner has failed to show otherwise despite having an opportunity to do so.
2.2.1 Statutory Tolling
AEDPA includes a statutory tolling provision that suspends the limitations period for the time during which a " properly-filed" application for post-conviction or other collateral review is " pending" in state court. 28 U.S.C. § 2244(d)(2); Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008); Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir. 2005). An application is " pending" until it has achieved final resolution through the state's post-conviction procedures. Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). The Court finds Petitioner is not entitled to statutory tolling for the reasons set forth below.
2.2.1.1 Background Facts
Petitioner's state court records and the exhibits to his Petition establish he has filed two state habeas petitions, one in the superior court (case no. PA047668) and one in the California Court of Appeal (case no. B259109). (Pet. at 3-4; Appendix to the Petition (" App.") C; state court records.) Petitioner also claims to have filed a third habeas petition in the California Supreme Court, which is currently pending. (Pet. at 3, 9.) However, Petitioner has failed to provide a filing date or case number for that alleged petition, and his state court records do not reflect any habeas petition being filed in the California Supreme Court. (Pet. at 4, 9; state court records.) Therefore, the Court finds Petitioner has only filed two state habeas petitions. See Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010) (the petitioner " bears the burden of proving that the statute of limitation was tolled.").
The first of Petitioner's state habeas petitions was constructively filed on July 16, 2014, and denied on July 23, 2014. (Pet. at 3; App. C); see also Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (the prison mailbox rule applies to pro se state habeas petitions). The superior court denied that petition on the following grounds: (1) " Petitioner has failed to explain and justify the significant delay in seeking habeas relief, " with a citation to In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993); (2) issues raised in Petitioner's habeas petition could have been raised on direct appeal, with citations to In re Harris, 5 Cal.4th 813, 21 Cal.Rptr.2d 373, 855 P.2d 391 (1993); and In re Dixon, 41 Cal.2d 756, 264 P.2d 513 (1953); (3) state habeas review is unavailable to assess the credibility of trial witnesses or re-weigh the evidence; and (4) Petitioner's ineffective assistance of counsel (" IAC") claims lacked merit. (App. C.)
Petitioner filed his second state habeas petition in the California Court of Appeal on September 30, 2014 (case no. B259109). (State court records. The state court of appeal denied that petition on October 29, 2014, with the following comment:
Petitioner purports to have turned his second state habeas petition over to the prison authorities for mailing on August 26, 2014. (Pet. at 4.) Although the Court finds it unnecessary to determine the actual constructive filing date of that petition, the Court finds that in light of the unusual 35-day delay between the date Petitioner purports to have constructively filed that petition and the date it was actually filed with the clerk (September 30, 2014), he has not provided the accurate date despite being expressly afforded the opportunity to do so. See Banjo, 614 F.3d at 967 (the petitioner bears the burden of establishing tolling); see also Houston, 487 U.S. at 275 (" Because reference to prison mail logs will generally be a straightforward inquiry, making filing turn on the date the pro se prisoner delivers the notice to prison authorities for mailing is a bright-line rule, not an uncertain one.").
The petition is denied without prejudice to [Petitioner's filing a new petition in the Los Angeles Superior Court that includes: (1) a declaration from trial counsel, or (2) if trial counsel does not respond to petitioner within a reasonable amount of time, then [Petitioner's own declaration explaining how petitioner has attempted to contact trial counsel and the results of those attempts, with supporting documentation.
(State court records.) There is no indication in the pending Petition or Petitioner's Response whether Petitioner has re-filed a habeas petition in the superior court.
2.2.1.2 Analysis
2.2.1.2.1 First State Habeas Petition
Petitioner is not entitled to statutory tolling for the pendency of his first state habeas petition in the superior court because that petition was not " properly filed" for purposes of AEDPA's statutory tolling provision. Specifically, that petition was not " properly filed" because it was expressly denied by the superior court as untimely under state law. Pace v. DiGuglielmo, 544 U.S. 408, 414, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); Allen v. Siebert, 552 U.S. 3, 7, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007) (" We . .. reiterate now what we held in Pace : When a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).") (internal quotation marks, brackets, and citation omitted); Lakey v. Hickman, 633 F.3d 782, 785-86 (9th Cir. 2011) (" [W]e have consistently held that statutory tolling is unavailable where a state habeas petition is deemed untimely under California's timeliness standards.") (internal quotation marks and citation omitted); see also Walker v. Martin, 562 U.S. 307, 131 S.Ct. 1120, 1124, 179 L.Ed.2d 62 (2011) (" California courts signal that a habeas petition is denied as untimely by citing the controlling decisions, i.e., Clark and Robbins .").
Further, this result is unaltered by the fact that the superior court alternatively denied some claims on the merits. See Bonner, 425 F.3d at 1148-49 (" [T]he fact that the superior court also denied [the petitioner's] petition on the merits [does not] save his petition. Because the California courts dismissed [the petitioner's] petition as untimely, his petition was not 'properly filed' under AEDPA. Accordingly, he is not entitled to tolling under § 2244(d)(2)."); see also Saffold, 536 U.S. at 225-26 (" A court will sometimes address the merits of a claim that it believes was presented in an untimely way: for instance, where the merits present no difficult issue; where the court wants to give a reviewing court alternative grounds for decision; or where the court wishes to show a prisoner (who may not have a lawyer) that it was not merely a procedural technicality that precluded him from obtaining relief.").
Additionally, while the Ninth Circuit has pointed to two situations in which the higher state court's subsequent decision can overrule the lower court's determination of untimeliness, this Court finds neither situation is presented here. First, a higher state court may expressly overrule a lower court's timeliness determination. See Campbell v. Henry, 614 F.3d 1056, 1061 (9th Cir. 2010) (where the California Court of Appeal's order expressly stated that one of the claims was " not subject to the bar of untimeliness" under state law, the " earlier incorrect determination by the Superior Court that the claim was untimely is thus of no force or effect."). However, here, the California Court of Appeal's denial of Petitioner's second state habeas petition did not include any substantive comment. Walker, 131 S.Ct. at 1124 (" A spare order denying a petition without explanation or citation ordinarily ranks as a disposition on the merits. (Citations omitted.) California courts may elect to pretermit the question whether a petition is timely and simply deny the petition, thereby signaling that the petition lacks merit."). Consequently, the superior court's untimeliness ruling in this case was not expressly overruled. See Evans v. Chavis, 546 U.S. 189, 194, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006) (" If the appearance of the words 'on the merits' does not automatically warrant a holding that the filing was timely, the absence of those words could not automatically warrant a holding that the filing was timely.").
Second, in Trigueros v. Adams, 658 F.3d 983 (9th Cir. 2011), a three-judge panel of the Ninth Circuit found that, even without presuming that a state court's summary denial meant the court found a habeas petition timely, there were nevertheless " compelling factual circumstances" in that case " signaling that the [higher state court] did consider and reject the State's timeliness argument." Specifically, Trigueros found the higher state court impliedly overruled the lower court's untimeliness finding because, prior to the higher court's summary denial: (1) the higher court requested informal briefing on the merits, which was " highly significant"; and (2) the parties briefed the timeliness issue in the higher court, and therefore, that court " had before it all of the timeliness arguments from the parties." Id. at 990-91. However, neither of Trigueros 's " compelling" or " highly significant" circumstances existed here. The California Court of Appeal did not order any briefing on any issue; indeed, that court's only action was to deny the petition less than a month after it was filed without substantive comment or any citations. (State court records.)
Moreover, despite Petitioner's conclusory assertions to the contrary in his Response (Resp. at 3-4), the fact that the California Court of Appeal denied the second petition without prejudice to Petitioner " filing a new petition in the Los Angeles Superior Court" is also not an indication that the court impliedly found the petition timely or overruled the superior court's untimeliness ruling. Very significantly, the court of appeal's denial was without prejudice only as to Petitioner's IAC claims - the very claims the superior court denied on the merits despite finding the first petition untimely. (App. C; state court records.) The court of appeal's ruling was not inconsistent with the superior court's untimeliness ruling at all, as the superior court's order denying the first petition indicates it would again consider Petitioner's IAC claims on the merits despite the fact the petition was untimely. See Saffold, 536 U.S. at 225-26.
Based upon the foregoing, the Court finds Trigueros is distinguishable and inapplicable here, and that nothing in the court of appeal's order expressly or impliedly overruled the superior court's ruling that Petitioner's first state habeas petition was untimely under state law.
Lastly, Petitioner argues that both of his state habeas petitions were timely because they were filed while the AEDPA limitations period was still running. ( See Motion for Stay [4] at 2; Resp. at 2-3.) Petitioner's argument is rejected. AEDPA governs only the filing of federal habeas petitions, but under California's timeliness standard, " a [habeas] petition should be filed as promptly as the circumstances allow." In re Clark, 5 Cal.4th at 765 n. 5. Put another way, a prisoner must seek habeas relief without " substantial delay." In re Robbins, 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998). Notably here, the timeliness of a state habeas petition is " measured from the time the petitioner or his or her counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim." Id. Because the delay is measured from when the petitioner knew of the grounds for relief, " [t]hat time may be as early as the date of conviction." In re Clark, 5 Cal.4th at 765 n. 5.
Here, the superior court found that Petitioner's claims could have been raised in his direct appeal, which was denied on April 17, 2013, approximately fifteen months before he raised them in any state habeas petition. (App. C; state court records.) Moreover, Petitioner's claims - ineffective assistance of trial counsel, the denial of his right to present a defense, Batson error, and cumulative trial error - should reasonably have been discovered as early as his date of conviction. In re Clark, 5 Cal.4th at 765 n. 5; In re Robbins, 18 Cal.4th at 780. Consequently, this Court finds the superior court's untimeliness ruling was reasonable, the timeliness of both state habeas petitions was not governed by AEDPA, and Petitioner's argument to the contrary is rejected.
Based upon the foregoing, Petitioner is not entitled to statutory tolling for the pendency of his first state habeas petition, because that petition was not " properly filed." Pace, 544 U.S. at 414; Allen, 552 U.S. at 7; Lakey, 633 F.3d at 785-86.
2.2.1.2.2 Interval Tolling
On state collateral review, " intervals between a lower court decision and a filing of a new petition in a higher court, " when reasonable, fall " within the scope of the statutory word 'pending, '" thus tolling the limitations period. Saffold, 536 U.S. at 221, 223; Chavis, 546 U.S. at 192. However, Petitioner is not entitled to any interval (a.k.a. " gap") tolling for the period between the denial of his first state habeas petition and the filing of his second because his first petition was ruled untimely. An untimely state habeas petition " must be treated . . . as though it never existed[] for purposes of section 2244(d)." Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011). It follows that there is no gap to toll.
2.2.1.2.3 Second State Habeas Petition
Petitioner is also not entitled to statutory tolling for his second state habeas petition. Under the " look through" doctrine, that petition, which was denied without comment or citation, is deemed to have been rejected for the reasons set forth in the superior court's order. See Bonner, 425 F.3d at 1148 n. 13 (" We must determine what the superior court's order means because that was the last - and only - reasoned decision . . . .") ( citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)). Consequently, Petitioner's second state habeas petition is also deemed to have been rejected as untimely under California law and is not subject to statutory tolling. Id. at 1146-47, 1149 (holding that, where the superior court denied the first state habeas petition in part as untimely, the court of appeal denied the second state habeas petition " for the reasons stated in the superior court's" order, and the California Supreme Court denied the third state habeas petition without comment or citation, the petitioner was not entitled to statutory tolling during the pendency of any of the three petitions).
Based upon the foregoing, Petitioner is not entitled to any statutory tolling for the pendency of his two state habeas petitions.
2.2.2 Alternative Start of the Statute of Limitations
2.2.2.1 State-Created Impediment
In rare instances, AEDPA's one-year limitations period can run from " 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." 28 U.S.C. § 2244(d)(1)(B). Asserting that the statute of limitations was delayed by a state-created impediment requires establishing a due process violation. Lott v. Mueller, 304 F.3d 918, 925 (9th Cir. 2002). Petitioner has not set forth any facts for an alternate start date of the limitations period under this provision.
2.2.2.2 Newly Recognized Constitutional Right
AEDPA provides that, if a claim is based upon a constitutional right that is newly recognized and applied retroactively to habeas cases by the United States Supreme Court, the one-year limitations period begins to run on the date which the new right was initially recognized by the Supreme Court. 28 U.S.C. § 2244(d)(1)(C). Petitioner has not set forth any facts for an alternate start date of the limitations period under this provision.
2.2.2.3 Discovery of Factual Predicate
AEDPA also provides that, in certain cases, its one-year limitations period shall run from " the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D); Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012). Petitioner has not set forth any facts for an alternate start date of the limitations period under this provision.
2.2.3 Equitable Tolling
AEDPA's limitations period " is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Specifically, " a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace, 544 U.S. at 418; Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007).
However, " [e]quitable tolling is justified in few cases" and " the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) ( quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). Additionally, although " we do not require [the petitioner] to carry a burden of persuasion at this stage in order to merit further investigation into the merits of his argument for [equitable] tolling, " Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003), " [w]here the record is amply developed, and where it indicates that the [alleged extraordinary circumstance did not] cause the untimely filing of his habeas petition, a district court is not obligated to hold evidentiary hearings to further develop the factual record, notwithstanding a petitioner's allegations " Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010); see also Elmore v. Brown, 378 F.App'x 664, 666 (9th Cir. 2010) (" [W]here the record is sufficient to permit the district court - and us on appeal - to evaluate the strength of the petitioner's [equitable tolling] claim, the district court does not necessarily abuse its discretion if it denies the petitioner a hearing.") (cited pursuant to 9th Cir. R. 36-3).
In Petitioner's Response to the OSC, he makes a perfunctory assertion that he is entitled to equitable tolling (Resp. at 1), but he fails to set forth any facts to support that assertion. The Court finds Petitioner has presented no facts or circumstances warranting equitable tolling. See Banjo, 614 F.3d at 967 (the petitioner bears the burden of establishing tolling).
2.2.4 Alleged Actual Innocence
Lastly, in his Response to the OSC, Petitioner claims he is actually innocent of his crimes of conviction, and points the Court to a declaration attached to his Petition. (Resp. at 5-6.) The declaration to which Petitioner refers purports to be a statement by an individual names Justodio Chavez Morales confessing to Petitioner's crimes. (Pet., Ex. 2; Resp. at 5.) Under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), " a credible claim of actual innocence constitutes an equitable exception to AEDPA's limitations period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits." Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011). However, " [i]n order to present otherwise time-barred claims to a federal habeas court under Schlup, a petitioner must produce sufficient proof of his actual innocence to bring him within the narrow class of cases . . . implicating a fundamental miscarriage of justice." Id. at 937 (internal quotation marks and citations omitted). While a petitioner is not required to proffer evidence creating an " absolute certainty" about his innocence, the Schlup gateway is an " exacting standard" that permits review only in the " extraordinary case." Id. at 938; see also House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). Specifically, Petitioner must show " that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Lee, 653 F.3d at 938; Schlup, 513 U.S. at 327. The evidence of innocence must be " so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error." Lee, 653 F.3d at 938-39; Schlup, 513 U.S. at 316. Further, Petitioner must support his allegations " 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.
Petitioner's attempt to qualify under Schlup falls grossly short. Put simply, the allegedly new evidence of his innocence is neither credible nor reliable. The shooting in this case occurred during a confrontation between Petitioner and his estranged wife because he wanted to see their daughter and she was refusing to let him. Petitioner was placed at the scene by four eyewitnesses, all of whom knew him, including his estranged wife, who was the victim in this case, and another witness who was " face to face" with him just prior to the shooting. Immediately after the shooting, the victim told the police that Petitioner was the person who shot her, and that she saw Petitioner remove a gun from his pocket just before the shooting. Another witness recalled the victim stating, " He has a gun." Two of the other eyewitnesses also specifically testified that they saw Petitioner fire the gun. See People v. Ceras, No. B240200, 2013 WL 1636457, at *1-3 (Cal.Ct.App. Apr. 17, 2013). Consequently, " [a]ssessing 'how reasonable [factfinders] would react to the overall, newly supplemented record, '" it is simply not possible that " every juror would have reasonable doubt that [Petitioner] was guilty" based upon the purported confession by another individual. Id. ( quoting Lee, 653 F.3d at 929).
Petitioner has not presented a credible claim of actual innocence such that he " may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits." Lee, 653 F.3d at 932.
2.3 Procedural Default
The procedural default doctrine bars review of a petitioner's federal habeas claim when the claim was rejected in state court based on an adequate and independent state procedural bar. Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To be independent, such a procedural bar must have arisen from explicit and independent state law. Id. at 735; Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1988). If the basis of the decision is interwoven with federal law, or if a threshold federal analysis is required, there is no independent basis for the bar, and the petitioner may seek relief in federal court. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003). For the procedural bar to be adequate, it must be clear, consistently applied, and well established at the time of the alleged default. Collier v. Bayer, 408 F.3d 1279, 1284 (9th Cir. 2005).
The claims Petitioner raises in the pending Petition were all raised in the state courts on collateral review, and were therefore denied as untimely by the superior court. (Pet. at 5-7; App. C.) Further, the California Court of Appeal's subsequent denial of those claims without substantive comment is presumed to have relied on the superior court's procedural bar. Ylst, 501 U.S. at 803.
One of those claims is a Batson claim, and Petitioner raised a similar Batson claim on direct appeal that was denied on the merits. See People v. Ceras, No. B240200, 2013 WL 1636457, at *5-10 (Cal.Ct.App. Apr. 17, 2013). However, Petitioner admits that the Batson claim he now raises in the Petition, and which he raised in the state courts on collateral review, contains " new points and facts that were outside of the appeal record to be exhausted before proceeding to the federal courts." (Motion to Stay at 6.) Consequently, Petitioner's pending Batson claim is procedurally barred along with his other five claims.
The United States Supreme Court has conclusively held that California's timeliness rule is both independent and adequate. See Walker, 131 S.Ct. at 1124-31 (2011). As a result, the face of the Petition and the attached exhibits establish Petitioner's claims are procedurally defaulted, and " [a]ny arguments that [Petitioner] did, in fact, exhaust his administrative remedies, or that California did not properly apply its own procedures, are not appropriate for this court's consideration." Id. ( citing Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999)).
Moreover, the procedural default doctrine still applies even though the superior court alternatively addressed the merits in rejecting some of Petitioner's claims. See Harris, 489 U.S. at 264 n. 10; Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992).
A federal habeas court may, however, consider a procedurally defaulted claim if " the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice." See Bennett, 322 F.3d at 580. (Internal quotations and citation omitted). The miscarriage of justice exception is limited to petitioners who can show that " a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (citation omitted). In this case, neither the face of the Petition nor the attached exhibits make the required showing that there is cause and actual prejudice, or that the failure to consider Petitioner's claims will result in a fundamental miscarriage of justice. Further, Petitioner did not address the procedural default issue in his Response to the OSC. Finally, the Court has already rejected Petitioner's assertion of actual innocence.
Based upon the foregoing, the pending Petition, in addition to being time-barred, contains claims that are procedurally barred.
2.4 Petitioner's Motion for Stay and Abeyance
Petitioner filed a Motion for Stay and Abeyance [4] concurrently with his Petition seeking to exhaust all six of his pending claims in the state courts. The Court having now found this action is time-barred, procedurally barred, and subject to dismissal with prejudice, Petitioner's Motion for Stay and Abeyance is denied as moot.
ORDER
Based upon the foregoing, the Court finds this action is time-barred and procedurally barred. Further, by way of the OSC, the Court finds Petitioner has received notice and an adequate opportunity to show cause why this action should not be dismissed, but has failed to do so. ACCORDINGLY, IT IS HEREBY ORDERED THAT the reference to the Magistrate Judge is vacated and the Petition is dismissed with prejudice. The clerk is directed to enter judgment dismissing this action with prejudice and notify Petitioner of said judgment. Any and all pending motions, including Petitioner's Motion for Stay and Abeyance which is now moot, are terminated.
JUDGMENT
IT IS HEREBY ADJUDGED that this action is dismissed with prejudice for the reasons set forth in the related Order Dismissing Habeas Petition.