Opinion
CV-23-1442-PHX-MTL (JFM)
02-09-2024
Adam Scott Branch, Petitioner v. Ryan Thornell, 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 a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). 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
Late on the evening of June 25, 2010, the victim was attacked by a group of gang members in a Phoenix park. The victim was pepper sprayed, punched, kicked, stabbed, and robbed. A police investigation led to Petitioner, who confessed to having participated. (Exh. A, Mem. Dec. 4/17/14 at ¶¶ 2-3.) (Exhibits herein are referenced as follows: to the Petition (Doc. 1) as “Exh. P-”; and to the Answer (Doc. 12), as “Exh. .”)
Petitioner was convicted at trial in Maricopa County Superior Court on charges of armed robbery, aggravated assault, threatening or intimidating, and assisting a criminal street gang. Based on those convictions and a finding of two prior felony convictions, Petitioner was sentenced to concurrent prison terms of 18 years on the armed robbery, and 15 years each for the other charges. (Exh. A, Mem. Dec. 4/17/14 at ¶¶ 1, 13.)
Petitioner filed a direct appeal raising a claim of prosecutorial misconduct. In a decision issued April 17, 2014, the Arizona Court of Appeals found the order for Petitioner to pay for DNA testing was error and amended the sentence to omit it, but otherwise affirmed Petitioner's convictions and sentences. (Id. at ¶¶ 1, 27-28.) Petitioner did not seek reconsideration or review by the Arizona Supreme Court. Petitioner had 30 days to file his petition for such review. Ariz. R. Civ. Proc. 31.21(b)(2). Moreover, former Arizona Rule of Criminal Procedure 1.3 extended “the time to file an appeal by five days when the order appealed from has been mailed to the interested party and commences to run on the date the clerk mails the order.” State v. Zuniga, 163 Ariz. 105, 106, 786 P.2d 956, 957 (1990). Here, there is no indication that the Memorandum Decision was delivered to Petitioner or his counsel by any means other than mailing. Accordingly, Petitioner's time to seek review by the Arizona Supreme Court expired 35 days after the appellate court decision, and the appellate court's Mandate (Exh. A) issued July 10, 2014.
Rule 1.3 was amended effective January 1, 2018 to eliminate the application of the time-for-mailing to court issued filings. It was subsequently relocated to Ariz. R. Crim. Proc. 1.10(a)(5). Respondents do not reference or rely on this rule.
In the Petition, Petitioner asserts seeking review by the Arizona Supreme Court in his direct appeal (Petition, Doc. 1 at 3, ¶ 9(b)), and in his first PCR proceeding by the Arizona Court of Appeals and Arizona Supreme Court. (Petition, Doc. 1 at 5, ¶ 11(d)(1).) However, the only appellate court proceedings identified by Petitioner were his 2021 PCR petition for review to the Arizona Court of Appeals in case “1-CA-CR-21-0300 PRPC” (id. at 2, ¶ 8(b) and 4, ¶ 11(a)(4)), his 2022 petition for review therefrom to the Arizona Supreme Court in case “CR-22-0005 PR” (id. at 3, ¶ 9(b)). (See Exh. A, Mandate on Direct Appeal (“The time for the filing of a petition for review has expired an no such petition was filed.”); Exh. P-B, PCR PFR to Az. Sup. Ct. seeking review in 1-CA-CR-21-0300 PRPC; and Exh. R, Mandate on Sixth PCR.)
Petitioner commenced his first Post-Conviction Relief (PCR) proceeding by filing a PCR Notice (Exh. B) on July 21, 2014. That Notice was signed July 16, 2014. (Id. at 3.) He filed a second PCR notice (Exh. C) on July 30, 2014. Counsel filed a PCR Petition (Exh. D) on October 9, 2014 asserting ineffective assistance of counsel based on failure to call witnesses to establish Petitioner's alibi. The PCR Court dismissed the PCR petition in an Order (Exh. F) filed March 31, 2015, finding a failure to state a colorable claim. (Exh. F, Order 3/31/15.) Petitioner did not seek further review, and his time to do so expired 35 days after that ruling, on Tuesday, May 5, 2015. See Ariz. R. Crim. Proc.
Petitioner commenced his second PCR proceeding on August 10, 2015 by filing a PCR Notice (Exh. G) asserting claims of newly discovered material facts and actual innocence. That Notice was signed August 5, 2015. (Id. at 3.) The court summarily dismissed that proceeding in an order (Exh. H) filed January 8, 2016, finding the claims barred under Arizona's waiver bar. Petitioner did not seek further review, and his time to do so expired 35 days after that ruling, on Friday, February 12, 2016.
Petitioner commenced his third PCR proceeding on June 3, 2016 by filing a Petition for Writ of Habeas Corpus (Exh. I), asserting claims of newly discovered evidence, and ineffective assistance at trial and on appeal. That Petition was signed May 9, 2016. (Id. at 1.) The PCR court summarily dismissed that petition in an order (Exh. J) filed July 12, 2016 under Arizona's waiver bar. Petitioner did not seek further review, and his time to do so expired 35 days after that ruling, on Tuesday, August 16, 2016.
Petitioner commenced his fourth PCR proceeding on September 22, 2016 by filing a PCR Notice (Exh. K) asserting a claim of change in the law regarding sentencing. That Notice was signed September 14, 2016. (Id. at 3.) The PCR court summarily dismissed that petition in an order (Exh. I) filed November 18, 2016 under Arizona's timeliness and waiver bars. Petitioner sought review by the Arizona Court of Appeals, in case 1 CA-CR 16-0886 PRPC. In a Memorandum Decision (Exh. M) issued July 16, 2018, the Arizona Court of Appeals granted review, but summarily denied relief. Petitioner did not seek further review, and the appellate court's Mandate (Exh. M) issued March 2, 2018. Petitioner had no further available review.
Petitioner commenced his fifth PCR proceeding on February 11, 2021 by filing a PCR Notice (Exh. N) asserting a claim of actual innocence. That Notice was signed February 4, 2021. (Id. at 3.) In an Order (Exh. O) filed March 23, 2021, the PCR court summarily dismissed the proceeding based on Arizona's waiver bar. Petitioner did not seek further review, and his time to do so expired 30 days after that ruling, on Thursday, April 22, 2021.
Petitioner commenced his sixth PCR proceeding on April 20, 2021 by filing a PCR Petition (Exh. P) raising claims of ineffective assistance, coerced confession, unconstitutional prior used at sentencing, unauthorized sentence, and actual innocence. That Petition was signed April 9, 2021. (Id. at “5.”) In an Order (Exh. Q) filed July 7, 2021, the PCR court summarily dismissed the proceeding based on Arizona's waiver bar. Petitioner sought review by the Arizona Court of Appeals in case 1 CA-CR 21-0300 PRPC, which in a Memorandum Decision (Exh. R) filed December 9, 2021, summarily denied review. Petitioner sought review by the Arizona Supreme Court, which denied review in an Order filed July 1, 2022. The appellate court's Mandate (Exh. R) issued August 5, 2022. Petitioner had no further state review available.
Although relying on the procedural bar in this appellate proceeding, Respondents do not provide Petitioner's Petition for Review to the Arizona Court of Appeals, only his petition to the PCR court. (See Index of Exhibits, Doc. 12-1 at 1.)
Having sought review by the Arizona Supreme Court, Petitioner could have sought federal review by petition for writ of certiorari to the U.S. Supreme Court. However, statutory tolling of the habeas limitations period applies only to state proceedings, and not federal certiorari review. Lawrence v. Fla., 549 U.S. 327, 332 (2007).
III. PRESENT FEDERAL HABEAS PROCEEDINGS
Petitioner, presently incarcerated in the Arizona State Prison Complex at Buckeye, Arizona, commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on July 20, 2023 (Doc. 1). The Petition is dated July 20, 2023. (Id. at “11.”) Petitioner's Petition asserts the following grounds for relief:
In Ground One, Petitioner argues he received ineffective assistance of trial counsel because his counsel failed to suppress confessions that were obtained through threats and coercion, “did not motion or argue that the jury was NOT involved in using priors at sentencing,” did not object to perjured testimony, and allowed double punishment and “double counting” at sentencing. In Ground Two, Petitioner contends he received ineffective assistance of appellate counsel because his counsel raised only one issue on appeal and did not raise the issues that no alibi witnesses were called, and that perjured testimony was presented. In Ground Three, Petitioner argues that his sentences are illegal.(Order 10/16/23, Doc. 6 at 1-2 (emphasis added).) Petitioner argues his petition was timely (based on his 2021-2022 proceedings) and any untimeliness should be excused because he does not know the law and was dependent on assistance of other inmates. (Petition, Doc. 1 at “11”.)
Respondents filed their Limited Answer (Doc. 12) on December 26, 2023, arguing the petition is untimely and Petitioner has procedurally defaulted his state remedies on his claims.
Petitioner filed his Reply (Doc. 14) on January 24, 2024, arguing the AEDPA's statute of limitations is unconstitutional, he is actually innocent, Arizona's waiver bar (Rule 32.2) is being challenged, and the prosecutor engaged in misconduct at trial.
IV. APPLICATION OF LAW TO FACTS
A. TIMELINESS
1. Applicability
Respondents assert Petitioner's Petition is untimely. As part of the Anti-Terrorism 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.
Petitioner argues that this statute of limitations is unconstitutional because no time limit is provided for in the Suspension Clause in Article I, § 9, Clause 2 of the U.S. Constitution, which provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” However, the Ninth Circuit long ago rejected the claim that AEDPA's one-year statute of limitations violates the Suspension Clause. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.2003). “[T]he one-year limitations period is just that: a limitation, not a suspension.” Id.
Petitioner also argues that the statute of limitations improperly imposes principles of res judicata in a habeas proceeding. It is true that, ordinarily, the doctrines of res judicata and collateral estoppel do not apply to habeas corpus proceedings. Sanders v. U.S., 373 U.S. 1, 8 (1963) (“Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged.”). But the principles of res judicata depend upon showing that a claim or issue has been previously litigated among the parties. See Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). Application of the statute of limitations makes no inquiry into what claims are issues have been previously litigated among the parties, only as to when prior litigation among the parties occurred. Thus, no res judicata principles are being applied.
Finally, Petitioner argues that the statute of limitations can block relief from a miscarriage of justice. Indeed, the Supreme Court has held that a miscarriage of justice (i.e. the conviction of an actually innocent person) can avoid the statute of limitations. Those principles are discussed hereinafter in Section IV(A)(5).
2. Commencement and Timeliness without Tolling
The one-year statute of limitations on habeas petitions generally commences running on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).Here, Petitioner's direct appeal remained pending at least through April 17, 2014, when the Arizona Court of Appeals denied his appeal. (Exh. A.) Thereafter, Petitioner had 35 days to seek review by the Arizona Supreme Court, or until Thursday, May 22, 2014. Ariz. R. Crim. Proc. 31.21(b)(2); Ariz. R. Crim. Proc. 1.3 (2017).
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. Petitioner did assert newly discovered facts in his second and third PCR proceedings. But the statute would have begun running upon his discovery of those claims prior to those filings. Petitioner also asserted a change in the law in his fourth PCR proceeding, but the statute would have commenced running at least of the filing of that petition. Moreover, as discussed hereinafter, given the passage of time after these 2015-2016 PCR proceedings Petitioner's Petition would have, nonetheless, been untimely.
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). Respondents argue the time for such review should be included. (Answer, Doc. 12 at 5.) The Supreme Court “can review, however, only judgments of a ‘state court of last resort' or of a lower state court if the ‘state court of last resort' has denied discretionary review.” Gonzalez v. Thaler, 565 U.S. 134, 154 (2012) (citing U.S. Sup.Ct. R. 13.1 and 28 U.S.C. § 1257(a)). Here, Petitioner did not seek direct review by the Arizona Supreme Court. Accordingly, the time for seeking a writ of certiorari with the U.S. Supreme Court cannot be considered in determining when Petitioner's judgment became final. Id.
Based on the foregoing, Petitioner's conviction became final on May 22, 2014, upon expiration of his time to file a petition for review with the Arizona Supreme Court.
Respondents applied 90 days for a petition for certiorari, and thus ignore the 35 days for a petition for review to the Arizona Supreme Court, and therefore calculate a finality date of July 16, 2014, some 56 days later. (Answer, Doc. 12 at 5.)
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). Thus, absent tolling, Petitioner's one year commenced running May 23, 2014, and one year later expired on Friday, May 22, 2015.
Here, Petitioner's Petition was filed on July 20, 2023 (and dated the same date). (See Petition, Doc. 1 at “11.”) Thus, absent tolling, Petitioner's Petition was over eight years delinquent.
3. Statutory Tolling
The AEDPA provides for statutory 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). A post-conviction application remains pending until the expiration of time allowed to seek further review, even if such review is not sought. Melville v. Shinn, 68 F.4th 1154, 1160 (9th Cir. 2023).
Because they do not affect the outcome, the undersigned make the following assumptions arguendo (in Petitioner's favor): (1) that all of Petitioner's state PCR proceedings were “properly” filed within the meaning of § 2244(d)(2); (2) all of Petitioner's PCR applications should be deemed filed under the prison mailbox rule on the date they were signed (unless a date of delivery to prison officials is otherwise specified);and (3) where a mandate issued in the PCR proceedings, the limitations period remained tolled until issuance of the appellate court's mandate.
Respondents argue Petitioner's third, fourth, fifth and sixth PCR proceedings were dismissed as untimely, and are thus not properly filed. (Answer, Doc. 12 at 6.) However, in at least Petitioner's third, fifth and sixth proceedings, timeliness was not relied on to dismiss the petitions, only successiveness under Arizona's Rule 32.2. “In the absence of. .clear indication that a particular request for appellate review was timely or untimely, the [federal court] must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness.” Evans v. Chavis, 546 U.S. 189, 198 (2006). Thus, to deny statutory tolling for these proceedings, this Court would be required, without benefit of existing argument from the parties, that these filings would have been found untimely. Accordingly, and because it does not affect the outcome, the undersigned does not address Respondents argument on this issue.
For purposes of calculating tolling under § 2244(d), the federal prisoner “mailbox rule” applies. Under this rule, a prisoner's state filings are deemed “filed” (and tolling thus commenced) when they are delivered to prison officials for mailing. Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000).
But see Melville, 68 F.4th at 1160 (no statutory tolling given between expiration of time for further review and issuance of mandate).
Under those assumptions, Petitioner's one-year limitations period would have run for 55 days, from May 23, 2014 until July 16, 2014 when he commenced his first PCR proceeding. It would have been tolled until May 5, 2015, when Petitioner's time for further review expired. The limitations period would have run for an additional 92 days (a total of 147 days), until August 5, 2015 when Petitioner commenced his second PCR proceeding. It would have remained tolled until Friday, February 12, 2016 when his time for further review expired. The limitations period would have run for an additional 112 days (a total of 259 days), until May 9, 2016 when Petitioner commenced his third PCR proceeding. It would have remained tolled until Tuesday, August 16, 2016 when his time for further review expired. The limitations period would have run for an additional 29 days (a total of 288 days), until May 9, 2016 when Petitioner commenced his fourth PCR proceeding. It would have remained tolled until March 2, 2018 when the appellate court's mandate issued. At that point, Petitioner would have had no more than 77 days of his one year remaining (365 minus 288), with his one year expiring on Friday, May 18, 2018.
Petitioner's fifth PCR proceeding was not commenced until at least February 4, 2021. At that point his one year period had been expired for some 993 days. Once the statute has run, a subsequent post-conviction or collateral relief filing does not reset the running of the one year period. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Accordingly, Petitioner has no statutory tolling resulting from his fifth PCR proceeding, or from his sixth PCR proceeding.
Consequently, with all potentially available tolling, Petitioner's one year expired by at least May 18, 2018 (under the assumptions made above), and Petitioner's July 20, 2023 habeas petition was at least some 1,889 days delinquent.
Because of the differing finality date and the exclusion of tolling for untimely PCR proceedings, Respondents calculate a delinquency of 2,827 days. (Answer, Doc. 12 at 7.)
4. 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). See also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
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)).
Petitioner bears the burden of proof on the existence of cause for equitable tolling. Pace, 544 U.S. at 418; Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006).
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 argues in his Petition that any untimeliness should be excused because he does not know the law and was dependent on assistance of other inmates. (Petition, Doc. 1 at “11”.) “It is clear that pro se status, on its own, is not enough to warrant equitable tolling.” Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006). A prisoner's “proceeding pro se is not a ‘rare and exceptional' circumstance because it is typical of those bringing a § 2254 claim.” Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000). Similarly, “[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.” Rasberry, 448 F.3d at 1154. “[I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.” Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir.1999). Even if such circumstances could be deemed extraordinary, Petitioner proffers no details to support his assertions. For example, he does not suggest what information he lacked in order to file his federal petition, and offers no evidence of diligence in attempting to secure that information.
Moreover, Petitioner had the ability to pursue his claims through five rounds of pro se state PCR proceedings, and two rounds of pro se petitions for review. This indicates he had at least the capabilities of formulating his claims, preparing applications, and presenting them for filing. Petitioner offers nothing to show that those same energies could not have, with diligence, been applied to the filing of a timely (or at least much earlier) federal habeas petition.
The undersigned finds no basis for equitable tolling.
5. Actual Innocence
Petitioner asserts a “miscarriage of justice.” 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). The Supreme Court has never adopted a “miscarriage of justice” exception other than actual innocence, and at least in the context of procedural default, the Ninth Circuit has explicitly limited it to actual innocence. See Hertz & Lieberman, Federal Habeas Corpus Pract. & Proc., §26.4 at 1229, n. 6 (6th ed. 2011); Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008).
To invoke the actual innocence 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.'” McQuiggin, 569 U.S. 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 asserts his actual innocence. But Petitioner offers no new credible evidence of his innocence, and the record reveals none. In his Reply, Petitioner makes only a general reference to his attorney's failure to call “his witnesses.” (Reply, Doc. 14 at 3.)
Petitioner raised a claim of newly discovered evidence in his second PCR Notice (Exh. G), but alleged no facts to support it. In his fifth PCR proceeding, Petitioner asserted a claim of actual innocence. (Exh. N, PCR Not. 2/11/21 at 3.) But he proffered no facts or evidence to support that assertion. In his sixth PCR proceeding, Petitioner again asserted a claim of actual innocence, but again offered no facts or evidence to support it. (Exh. P at 3.) At best, Petitioner made a general reference to “alibi witnesses.” (Id. at 3D.)
A petitioner may not simply allege that evidence exists, but must ordinarily present it to the habeas court, e.g. through affidavits of the witness, etc. See Weeks v. Bowersox, 119 F.3d 1342, 1352-1353 (8th Cir. 1997). In his first PCR proceeding, Petitioner argued there were three uncalled witnesses including two bystander witnesses (RPO and TB) and a co-defendant (Gonzalez). In that proceeding Petitioner provided only police reports summarizing the statements of the three witnesses. (See Exh. D, PCR Pet. at Exhs. A, B, C.) Based on those reports, the bystander witnesses presumably would testify to descriptions of the perpetrators that were inconsistent with Petitioner's appearance (e.g. Hispanic and/or dark complexion, while Petitioner is white), and the co-defendant would testify that Petitioner was not present. (See Exh. F, Order 3/31/15 at 3.) In his state habeas petition (Exh. I) (his third PCR proceeding) Petitioner argued that the co-defendant Gonzalez had been encountered in prison, and provided Petitioner an Affidavit that Petitioner “was not present at the scene of the crimes.” (Exh I at Exh. A, Gonzalez Affidavit.) Petitioner still presents no evidence showing how the bystander witnesses would testify.
Further, Petitioner proffers nothing to show that RP and TB would now be available to testify. TB failed to appear for trial despite being subpoenaed.
Petitioner proffers nothing to show how the testimony of these witnesses (assuming they would testify consistent with the foregoing) would establish a likelihood that no reasonable juror would convict Petitioner. The PCR court observed:
The key prosecution evidence at trial was defendant's confession. Defendant's tape recorded confession provided intimate details concerning the assault and stabbing. He identified the location, the people involved, that pepper spray was used, what words were used and what happened afterwards. He also identified the other members of the gang who were present.
Defendant presents no evidence on why he would have falsely confessed. There is no evidence that defendant was coerced into the confession. Moreover, defendant's suggestion at trial that he was taking the fall for another individual was not supported by evidence. Not only did defendant name other gang members who were present during the attack, but the evidence demonstrated that defendant was one of the higher ranking gang members present at the attack. The only person ranking above him was Ricardo Ramos, also known as Phantasma, who defendant identified as being present. Detective Schultz testified that high-ranking gang members do not take the fall for lower ranking members. R.T. 11/28/12 at 60.
Defendant fails to present affidavits from any of the witnesses, so the Court lacks specifics on what the witness' testimony would have been had they been called to testify or whether they were available to testify. In addition, the claim that testimony from RPO or TB would have altered the outcome of the trial is speculative at best. Neither witness told the police that they could identify all of the attackers. Mr. Branch admitted that he was accompanied by Hispanics on the night in question. The victim testified that the attackers were Hispanic, so the evidence from RPO and TB is cumulative. The crime occurred at night and, at best, the lighting at the scene of the crime was indirect. In conclusion, the witness statements provided to the police for RPO and TB are not so persuasive that they actually could have an impact on the outcome.
The statement that Brayan Gonzalez gave to police lists the individuals involved in the attack, and he does not identify Mr. Branch as being present during the assault. But, once again, there is no affidavit from Mr. Gonzalez indicating why Mr. Branch's name was omitted, or whether Mr. Branch was present during the attack. There is no evidence challenging the defendant's confession or suggesting why Mr. Branch would have falsely confessed. Given the strength of the confession, defendant failed to present a colorable
claim that the presentation of Mr. Gonzalez as a witness could have, with reasonable probability, affected the outcome of the trial.
(Exh. F, Order 3/31/15 at 3-4.)
The findings of historical facts (as opposed to credibility determinations) in the state court's analysis are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). See Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010); and Reed v. Stephens, 739 F.3d 753, 773 n. 8 (5th Cir.) cert. denied, 135 S.Ct. 435 (2014) (listing similar decisions from 3rd 6th, 8th, 9th, 10th, 11th, albeit some unpublished). Cf. Gandarela v. Johnson, 286 F.3d 1080, 1087 (9th Cir. 2002) (declining to decide if 2254(e)(2) applied to claim of procedural actual innocence). But see Smith v. Baldwin, 510 F.3d 1127, 1142, n. 11 (9th Cir. 2007) (“It does not matter to our [actual innocence] analysis whether the witness is actually telling the truth-the purpose of a credibility determination-but rather we care only whether all reasonable jurors would choose to believe the proffered testimony.”) The undersigned quotes the state court's entire analysis, with which the undersigned agrees, to demonstrate the likely impact of such evidence in light of the other evidence at trial.
Petitioner offers nothing to show that his three witnesses are credible, e.g. as to bias, memory, and/or perception. With regard to co-defendant Gonzalez, his being housed in the same prison as Petitioner suggests a lack of credibility based upon the potential for coercion. In addition, Gonzalez's relative status in the gang as compared to Petitioner suggests a potential for bias. With regard to the bystander witnesses, Petitioner offers nothing to show they were paying the requisite attention and had a vantage point (given distance and night time lighting) to sufficiently observe all participants in the attack so as to exclude Petitioner.
Finally, Petitioner fails to show how these witnesses would overcome the weight of Petitioner's confession, on which they proffer no testimony. The undersigned observes the Petitioner asserts in Ground One that his confession was coerced. (Petition, Doc. 1 at 6.) But he offers no particulars or evidence to support that conclusory claim.
In sum, Petitioner fails to present credible evidence of his actual innocence sufficient to overcome his confession and the other evidence against him, such that no reasonable juror would be likely to convict him.
6. Summary re Statute of Limitations
Taking into account the available statutory tolling, Petitioner's one year habeas limitations period expired on May 18, 2018, making his Petition at least more than five years 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 and resolution of the procedural bar defense would require supplementing the record with Petitioner's filings in the proceeding in which Respondents allege a procedural bar, Respondents' procedural default defense is not reached.
V. CERTIFICATE OF APPEALABILITY
“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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 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.
VI. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) 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.
VII. 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.”