Opinion
CV-20-2436-PHX-DLR (JFM)
12-02-2021
Joseph Demetrius Porras, Petitioner v. State of Arizona, et al., Respondents.
REPORT &RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
James F. Metcalf United States Magistrate Judge
I. MATTER UNDER CONSIDERATION
Petitioner has filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 9). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
The following summary of the facts is drawn from the decision of the Arizona Court of Appeals in disposing of Petitioner's direct appeal, which purported to present the facts in the light most favorable to sustaining the judgment.
¶2 The Phoenix Police Department responded to complaints that a person, later identified as Porras, was running in and out of traffic. When the officers arrived, Porras gave them a false name and, after the officers asked again, fled the scene, ignoring commands to stop. The officers followed Porras in their vehicles, but Porras continued to run, ignoring the emergency lights and sirens. Porras eventually stopped, picked up two broken stone pavers, and threw one of the pavers at Officer Stephen Lewis, who was walking toward him. Officer Lewis moved and avoided being hit, and Porras turned and walked away, carrying the second paver. The officers then used a
Taser on Porras, and arrested him.(Exh. F, Mem. Dec. 5/12/16 at ¶ 2.) (Exhibits herein are referenced as follows: to the Answer (Doc. 16), as “Exh. __”; and to the Reply (Doc. 26) as Exh. R-__.” Exhibits to the Amended Petition (Doc. 9) are largely unlabeled and are referenced by page number as “P. Exh. at __.”)
Respondents' .pdf bookmarks are mislabeled for Exhibits GG to HH, the labelling have omitted what the Index (Doc. 16-1 at 2) labels as the second “Pro Se Petition for PostConviction Relief” (captioned “Post Conviction Relief”), and labeling both the PCR response and PCR reply as “Exhibit HH Reply to Response to Petition for Post-Conviction Relief Pro Se”. Bookmarks for Exhibits A to FF and JJ to SS are unaffected.
B. PROCEEDINGS AT TRIAL
The Arizona Court of Appeals summarized the proceedings at trial as follows:
¶ 3 Porras was indicted for one count of aggravated assault, a class 2 dangerous felony. At trial, Porras waived his right to counsel, and was allowed to represent himself. The jury found Porras guilty. Because he was on probation and had a felony conviction, he was subsequently sentenced to 15.75 years in prison, and was given 512 days of presentence incarceration credit.(Exh. F, Mem. Dec. 5/12/16 at ¶ 3.) Petitioner was sentenced on February 13, 2015. (Exh. S, Sentence.)
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a direct appeal. Appointed counsel was unable to find a non-frivolous issue for review and filed an Opening Brief (Exh. D) pursuant to Anders v. California, 386, U.S. 738 (1967) and related state authorities. Petitioner then filed a pro per “Supplemental Brief” (Exh. E.)
In a Memorandum Decision issued May 12, 2016 (Exh. E) the Arizona Court of Appeals found no merit to the asserted claims, reviewed the record for “reversible error” and found none, and affirmed Petitioner's convictions and sentences.
Petitioner filed a Petition for Review (“Appellant for Relief: Exonerated / or New Trial”) (Exh. I) by the Arizona Supreme Court. On January 23, 2018 the Arizona Supreme Court denied review, and the Arizona Court of Appeals issued its Mandate (Exh. L) on March 16, 2018.
Petitioner asserts that he filed a petition for certiorari in the United States Supreme Court on February 26, 2020. (Petition, Doc. 9 at 6 (“3”).) But the referenced case number and dates indicate this was a petition in his second PCR Proceeding, as discussed hereinafter.
Accordingly, the undersigned finds Petitioner did not seek certiorari review of his direct appeal proceedings.
D. PROCEEDINGS ON POST-CONVICTION RELIEF
1. First PCR Proceeding
On June 14, 2016, during the pendency of his direct appeal proceedings before the Arizona Supreme Court, Petitioner commenced his first post-conviction relief (PCR) proceeding by filing a PCR Notice (Exh. T). Counsel was appointed but the PCR court ultimately granted Petitioner's request to represent himself. (Exh. V, M.E. 10/21/16.)
Petitioner provides a copy of a July 15, 2016 Order dismissing a PCR Notice filed June 14, 2016. (P. Exh. at 81.) However, this was in a separate case (CR2005-006245-002 DT) from the instant prosecution (CR2013-445678-001 DT).
Petitioner ultimately filed his pro per Amended PCR Petition (Exh. X, dated 11/30/16, filed 12/12/16), which was summarily denied on April 5, 2017. (Exh. Y, M.E. 4/5/17.)
Petitioner then filed several replies (Exh. Z and Exh. AA), which the PCR court “dismissed” on May 1, 2017. (Exh. BB, M.E. 5/1/17.)
Petitioner argues that he sought review of this proceeding in both the Arizona Court of Appeals and Arizona Supreme Court. (Petition, Doc. 9 at 8 (“5”).) Petitioner offers nothing to support that contention. The undersigned finds that Petitioner did not seek further review of these proceedings.
2. Second PCR Proceeding
Almost eleven months later, on March 26, 2018, Petitioner commenced his second PCR proceeding by filing a PCR Notice (Exh. CC). Counsel was appointed (Exh. DD, M.E. 5/3/18), who eventually filed a Notice of Completion (Exh. EE) evidencing an inability to find an issue for review. Petitioner then filed a pro per “Requests Notice Relief” (Exh. FF) asking for transcripts and to terminate counsel's advisory representation. Petitioner filed his pro per PCR Petition (Exh. GG).
The PCR court dismissed the Petition as untimely and “successive” under Arizona Rule of Criminal Procedure 32. (Exh. JJ, M.E. 2/6/19.)
The undersigned observes that the PCR court asserted: “This is Defendant's sixth, possibly 4th or 7th, Rule 32 Proceeding.” “The Court notes the count may be otherwise as Defendant filed two separate Petitions for Relief during the pendency of his sentencing. Additionally, it is difficult to say what the number [sic] actual number is since a number of them appear to be the same petition with different dates and filed with the court on different dates.” (Exh. JJ, M.E. 2/6/19 at 1 and n. 2.) Petitioner proffers nothing to show that any pre-sentence PCR petitions remained pending post-sentence. Moreover, these pre-judgment applications could not constitute “State post-conviction or other collateral review, ” 28 U.S.C. § 2244(d)(2), for purposes of statutory tolling of the habeas limitations period, but were instead part of the original trial proceedings. As for the count, the undersigned finds no reason to conclude that the proceedings were other than as described herein, consisting of three separate PCR proceedings. Moreover, the Arizona Court of Appeals described this second proceeding as “petitioner's second petition.” (Exh. NN, Mem. Dec. 9/26/19 at ¶ 1.)
Petitioner filed a Petition for Review (Exh. LL) with the Arizona Court of Appeals. The Arizona Court of Appeals granted review, but summarily denied relief based on absence of an abuse of discretion. (Exh. NN, Mem. Dec. 9/26/19.)
Petitioner sought review by the Arizona Supreme Court (Exh. PP), which summarily denied review on May 28, 2020 (Exh. RR). On June 25, 2020, the Arizona Court of Appeals issued its mandate (Exh. SS).
E. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Over five months later, on December 9, 2020, Petitioner commenced the current case by filing with the Ninth Circuit Court of Appeals his original Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 4). The Ninth Circuit transferred the Petition to this Court as improperly filed in that court. (Order 12/17/20, Doc. 3.)
This Court dismissed with leave to amend that original Petition for failure to name a proper respondent, finding that Petitioner had named only the State of Arizona. (Order 12/22/20, Doc. 8.)
On December 30, 2020, Petitioner filed his amended Petition (Doc. 9), raising four grounds for relief which the undersigned liberally construes to assert the following claims.
Ground 1 Failure to disclose police reports and the victim's “original arrest evidence and probable cause, ” in violation of Petitioner's rights under Brady v. Maryland, 373 U.S. 83, 87 (1963).
Ground 2 Violations of his due process rights to a fair trial under the Fourteenth Amendment arising out of a conspiracy between the prosecution and defense counsel to suppress evidence including the original arrest and probable cause records and a grand jury transcript.
Ground 3 Prosecutorial misconduct by failure to disclose the arrest reports and obtaining an indictment on evidence contradicted at trial, in violation of his Fourth, Fifth, and Fourteenth Amendment rights.
Ground 4 Prosecutorial misconduct from suppression of the victim's original arrest reports in violation of his Fourteenth Amendment Due Process rights.(See Service Order 2/19/21 at 2-3 (generally describing the grounds for relief in the Petition).
Response - On March 23, 2021 Respondents filed their Limited Answer (“Answer”) (Doc. 16). Respondents argue the Petition is untimely and barred by the habeas statute of limitations. They also argue Petitioner has never properly exhausted his state remedies by fairly presenting his claims to the Arizona Court of Appeals and those state remedies are now procedurally defaulted.
Reply - Because Respondents relied in part upon a failure to properly exhaust state remedies, the Court set a date certain for a reply and directed:
any assertions in the reply that Petitioner's claims were fairly presented to the state appellate courts shall be supported by specific references to the location of the presentation of the claim, i.e. by
exhibit number/letter in the record of this proceeding, document name, date of filing with the state court, page(s)/ line number(s) (e.g. “Exh. A, Petition for Review, filed 1/1/15, at 1/17 - 2/23”).(Order 3/24/21, Doc. 17.)
On June 2, 2021, Petitioner filed his Reply (Doc. 26). Petitioner argues at length the merits of his claims (id. at 1-14), argues that he should not be charged with the dismissal of his second PCR proceeding as untimely and successive because his first PCR petition was wrongly denied (id. at 14-15), his second PCR petition properly raised claims of newly discovered material evidence (id. at 15-16).
III. APPLICATION OF LAW TO FACTS
A. TIMELINESS
1. One Year Limitations Period
Respondents assert that Petitioner's Petition is untimely. As part of the AntiTerrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress provided a 1-year statute of limitations for all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 U.S.C. § 2244(d). Petitions filed beyond the one-year limitations period are barred and must be dismissed. Id.
2. Commencement of Limitations Period
The one-year statute of limitations on habeas petitions generally begins to run on "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).
Later commencement times can result from a state created impediment, newly recognized constitutional rights, and newly discovered factual predicates for claims. See 28 U.S.C. § 2244(d)(1)(B)-(D). Petitioner proffers no argument that any of these apply.
Here, Petitioner's direct appeal remained pending through January 23, 2018, when the Arizona Supreme Court denied his Petition for Review. (Exh. K.)
For purposes of 28 U.S.C. § 2244, “direct review" includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The rules of the Supreme Court of the United States, requires that a petition for a writ of certiorari be filed “within 90 days after entry of the order denying discretionary review.” U.S. Sup. Ct. R. 13(1). That time has passed. Accordingly, because Petitioner did not file a petition for a writ of certiorari, his conviction became final on Monday, April 23, 2018, 90 days after the Arizona Supreme Court denied review.
“The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice).” U.S. Sup. Ct. R. 13(3).
For purposes of counting time for a federal statute of limitations, the standards in Federal Rule of Civil Procedure 6(a) apply. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Rule 6(a)(1)(A) directs that the “the day of the event that triggers the period” is excluded. See Patterson v. Stewart, 251 F.3d 1243 1246 (9th Cir. 2001) (applying “anniversary method” under Rule 6(a) to find that one year grace period from adoption of AEDPA statute of limitations, on April 24, 1996, commenced on April 25, 1996 and expired one year later on the anniversary of such adoption, April 24, 1997).
Based on the foregoing, Petitioner's conviction became final on April 13, 2018, upon expiration of his time to file a petition for writ of certiorari with the U.S. Supreme Court, and without any tolling expired one year later, on Tuesday, April 23, 2019.
Respondents effectively assume arguendo an expiration date five days later, on April 28, 2018, based on the application of Arizona's additional time after mailing of an order. (Answer, Doc. 16 at 10, n.5.) That state rule does not, however, apply to the deadline for petitions for certiorari. Even if it did, the deadline for petitions for certiorari runs not from service or notice, but from “entry of the judgment.” U.S. Sup. Ct. R. 13(1). The conclusion might be different if Arizona law deemed its state court judgment not entered until served. But the application of Rule 1.3 to appeal deadlines, etc. has not been based on any such analysis, but rather on a determination that its appeal deadlines run from the date of notice of entry. See State v. Zuniga, 163 Ariz. 105, 786 P.2d 956 (1990). See also id. at 106, 786 P.2d at 957, n. 2 (“We again stress that in most criminal cases, the defendant and counsel for both sides will be present in court when the appealed order, judgment, or sentence is entered and that in this opinion we deal only with cases in which notice is, in fact, given by mail.”).
Respondents fail to apply U.S. Sup. Ct. R 30(1) (“the next day that is not a Saturday, Sunday....”) to the calculated date of Saturday, April 28, 2018.
Nor is there a federal rule providing for an extension for mailing. The U.S. Supreme Court rules make no provision for extending deadlines based on service by mail. See U.S. Sup. Ct. R. 30 (“Computation and Extension of Time”). While Federal Rule of Civil Procedure 6(d) has long allowed an additional three days based on mailing, it is only where the relevant start date is the date of “being served” and service is by mail.
Nonetheless, because it does not affect the outcome, the undersigned assumes arguendo in Petitioner's favor, that the additional five days applies, and that his conviction did not become final until Monday, April 30, 2018, and without any tolling expired on Tuesday, April 30, 2019.
3. Statutory Tolling
The AEDPA provides for tolling of the limitations period when a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). This provision only applies to state proceedings, not to federal proceedings. Duncan v. Walker, 533 U.S. 167 (2001).
First PCR Proceeding
Here, Petitioner's first post-conviction relief proceeding was commenced on June 14, 2016, before his limitations period began running. It remained pending until April 5, 2017, when the PCR court dismissed the proceeding. Because it does not affect the outcome, the undersigned follows Respondents' lead by assuming that it remained pending until May 1, 2017 when the PCR court dismissed Petitioner's post-dismissal replies. (Exh. BB, M.E. 5/1/17.) This was prior to the commencement of Petitioner's limitations period, and thus did not result in tolling.
Second PCR Proceeding
Petitioner's second PCR proceeding was commenced when he filed his PCR Notice on March 26, 2018 (Exh. CC), again before his limitations period began running. That proceeding remained pending until June 26, 2020 when the Arizona Court of Appeals issued its mandate.
However, statutory tolling of the habeas limitations period only results from state applications that are “properly filed, ” and an untimely application is never “properly filed” within the meaning of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408 (2005). Even if the state court provides alternative grounds for disposing of the state application, a ruling that the application was untimely precludes it from being “properly filed” and tolling the limitations period. Carey v. Saffold, 536 U.S. 214, 225-26 (2002). For purposes of applying the “properly filed” requirement of § 2244(d), the federal courts look to the “last reasoned decision” of the state courts. Curiel v. Miller, 830 F.3d 864, 869 (9th Cir. 2016).
Here, Arizona Supreme Court summarily denied review (Exh. RR), and the Arizona Court of Appeals summarily denied relief (Exh. NN). Thus, the last reasoned decision in the Second PCR proceeding was that of the PCR court, which ruled that the proceeding was “successive and untimely.” (Exh. JJ, M.E. 2/6/19 at 1.)
Petitioner argues this timeliness ruling was wrong, asserting that his first PCR petition had been erroneously denied, and that his second PCR petition asserted claims based on newly discovered evidence which fell with Arizona's exceptions to its timeliness rule. (Reply, Doc. 26 at 14-16.) However, if a state court “has held that a state habeas petition was timely or untimely, we are bound by that decision.” Valdez v. Montgomery, 918 F.3d 687, 692 (9th Cir.), cert. denied, 140 S.Ct. 252 (2019).
Even if this Court could revisit the appropriateness of the state court's timeliness ruling, Petitioner fails to support his contentions. First, Petitioner proffers no authority for the proposition that erroneous decision in one PCR proceeding results in an extension of time to file another. Rather, Arizona's longstanding procedures allow for addressing erroneous decisions through a petition for review, not a new PCR proceeding.
Second, Petitioner proffers nothing to show that his PCR petition was actually based on “newly discovered evidence.” At most, he makes allegations that the prosecution failed to disclose certain evidence. Moreover, Arizona Rule of Criminal Procedure 32.4 excepts from the timeliness rules claims arising under, inter alia, Rule 32.1(e) that are based on “newly discovered material facts.” Petitioner points to no “newly discovered facts [that] are material and not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony that was of such critical significance that the impeachment evidence probably would have changed the judgment or sentence.” Ariz. R. Crim. Proc. 32.1(e)(3). Indeed, Petitioner's first PCR petition referenced the same matters, i.e. the undisclosed grand jury transcripts (Exh. X, PCR Pet., Mem. at 2), the victim's “probable cause statement” (id.), and various purportedly perjurious testimony (id. at 3-9). While such matters may have been “newly discovered facts” when Petitioner filed his first PCR proceeding, they were no longer newly discovered when he filed his second.
Accordingly, the Court must conclude that Petitioner's second PCR proceeding was untimely and did not result in any statutory tolling.
Thus, Petitioner is not entitled to any statutory tolling, and his one year expired no later than April 30, 2019.
4. Timeliness Without Tolling
Petitioner's Amended Petition (Doc. 9) was filed on December 30, 2020, and was 18 months delinquent.
The Amended Petition reflects it was also “placed in the prison mailing system on the 30th of December 20/20.” (Amend. Pet., Doc. 9 at 14 (“11”).) Thus it is not rendered any earlier filed under the prison mailbox rule.
Rule 15(c) provides that an “amendment of a pleading relates back to the date of the original pleading when... (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” However, an amended petition “does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005). The original and amended claims must, instead, be “tied to a common core of operative facts.” Id. at 664.
Because it does not affect the outcome, the undersigned assumes arguendo in Petitioner's favor that the claims in his Amended Petition are tied to a common core of operative facts from the original Petition filed December 17, 2020, and that his Amended Petition relates back to that date.
Moreover, the Ninth Circuit has directed that under the prison mailbox rule the original Petition must be deemed filed as of December 9, 2020. (Order 12/17/20, Doc. 3.)
Even so, Petitioner's Amended Petition, if deemed filed December 9, 2020, remains over 17 months delinquent.
5. Equitable Tolling
"Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available in our circuit, but only when ‘extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time' and ‘the extraordinary circumstances were the cause of his untimeliness.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003).
To receive equitable tolling, [t]he petitioner must establish two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way. The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness, and that the extraordinary circumstances ma[de] it impossible to file a petition on time.Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal citations and quotations omitted). “Indeed, ‘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) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000).
Even if extraordinary circumstances prevent a petitioner from filing for a time, equitable tolling will not apply if he does not continue to diligently pursue filing afterwards. “If the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing.” Valverde v. Stinson, 224 F.3d 129, 134 (2nd Cir. 2000). Ordinarily, thirty days after elimination of a roadblock should be sufficient. See Guillory v. Roe, 329 F.3d 1015, 1018, n.1 (9th Cir. 2003).
Petitioner bears the burden of proof on the existence of cause for equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (“Our precedent permits equitable tolling of the one-year statute of limitations on habeas petitions, but the petitioner bears the burden of showing that equitable tolling is appropriate.”).
Petitioner does not proffer any grounds for equitable tolling, and the undersigned finds none.
To the extent that any errors occurred in the denial of Petitioner's first PCR proceeding or the determination that his second PCR proceeding was untimely, Petitioner fails to show that he acted diligently in filing his federal petition after becoming aware of such errors. Instead, he continued to press on with his state proceedings, not filing his federal petition until more than 3 years and 8 months after denial of his first PCR, and more than 22 months after the denial of his second PCR as untimely. If diligent, he would have instead filed a protective federal habeas petition. See Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (noting state petitioner's ability to file a protective federal petition and seek a stay to allow him to proceed with his state proceedings in an attempt to exhaust state remedies).
6. Actual Innocence
To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383 (2013). To invoke this exception to the statute of limitations, a 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.'” Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). This exception, referred to as the “Schlup gateway, ” applies “only when a petition presents ‘evidence of innocence 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.'” Id. at 400 (quoting Schlup, 513 U.S. at 316). “To be credible, such a claim requires petitioner to 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. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.” Schlup, 513 U.S. at 324.
Petitioner makes no claim of actual innocence based on new credible evidence, and the record reveals none.
At most, Petitioner asserts that the state did not fairly meet its burden of showing his guilt, e.g. because it withheld evidence, used perjured testimony, or conspired with defense counsel. “It is important to note in this regard that ‘actual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). Moreover, a finding of “actual innocence” is not to be based upon a finding that insufficient evidence to support the charge was presented at trial, but rather upon affirmative evidence of innocence. See U.S. v. Ratigan, 351 F.3d 957 (9th Cir. 2003) (lack of proof of FDIC insurance in a federal bank robbery case, without evidence that insurance did not exist, not sufficient to establish actual innocence).
7. Summary re Statute of Limitations
Petitioner's one year habeas limitations period commenced running no later than May 1, 2018, and expired on April 30, 2019. Making his Amended Petition no less than 17 months delinquent. Petitioner has shown no basis for additional statutory tolling, and no basis for equitable tolling or actual innocence to avoid the effects of his delay. Consequently, the Petition must be dismissed with prejudice.
B. OTHER DEFENSES
Because the undersigned concludes that Petitioner's Petition is plainly barred by the statute of limitations, Respondents procedural default defenses are not reached.
IV. CERTIFICATE OF APPEALABILITY
Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the “district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Such certificates are required in cases concerning detention arising “out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards - The standard for issuing a certificate of appealability (“COA”) is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2253(c)(3). See also Rules Governing § 2254 Cases, Rule 11(a).
Standard Not Met - Assuming the recommendations herein are followed in the district court's judgment, that decision will be on procedural grounds. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. 9) and this case be DISMISSED WITH PREJUDICE.
(B) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the magistrate judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the magistrate judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”