Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Dean D. Pregerson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on November 19, 2013, bearing a signature date of November 11, 2013, and accompanied by a supporting memorandum ("Pet. Mem."). Also on November 19, 2013, Petitioner filed "Petitioner's Appeal from State Courts on Habeas Corpus Pursuant to 28 U.S.C. §2254" ("Petitioner's Appeal"). Respondent filed an Answer on February 4, 2014, asserting that the Petition is untimely and partially unexhausted. Petitioner filed a Traverse on March 10, 2014.
BACKGROUND
A jury found Petitioner and his co-defendant Mike Taituave guilty of: (1) one count of conspiracy to commit murder in violation of California Penal Code section 182(a)(1); (2) five counts of attempted murder in violation of California Penal Code sections 187(a) and 664; and (3) five counts of assault with a firearm in violation of California Penal Code section 245(a)(2) (Respondent's Lodgment 2; see People v. Taituave, 2012 WL 1681089 (Cal.App. May 15, 2012)). The jury found true the allegations that Petitioner committed the offenses for the benefit of a criminal street gang within the meaning of California Penal Code section 186(b)(1)(C) (Respondent's Lodgment 2). The jury also found true various firearm enhancements alleged against Petitioner (Respondent's Lodgment 2). Petitioner received a sentence of 200 years to life (Respondent's Lodgments 1, 3).
The Court of Appeal modified the judgment with respect to Petitioner's sentence but otherwise affirmed (Respondent's Lodgment 4; see People v. Taituave, 2012 WL 1681089 (Cal.App. May 15, 2012)). The California Supreme Court denied Petitioner's petition for review on July 18, 2012 (Respondent's Lodgment 7).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Taituave, 2012 WL 1681089 (Cal.App. May 15, 2012). See Runningeagle v. Ryan , 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates , 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
Prosecution Evidence
Sometime around 2004 Sheila Ho-Ching became a member of the West Side Piru gang that was affiliated with the Bloods. Beginning in October 2008, Sheila started spending time with her cousin Faasooso Tautolo who was a member of the Sons of Samoa (S.O.S.), a Crips street gang. Faasooso's father Eni Tautolo was the head of the S.O.S. Sheila lived with her father Hoching Ho-Ching, Jr. (Joe) and her mother Maria Ho-Ching. Other West Side Piru members were known to spend time at the house. Beginning in November 2008, the S.O.S. gang vandalized the Ho-Ching residence. Car windows were broken and a brick was thrown through the front window. Gang-related graffiti claiming S.O.S. territory and identifying Sheila and Faasooso by their street names was written on the house and street including the words "Peanut Killer" and "F P-dime."
Sheila's moniker was "P-dime" and the P referred to Piru. Peanut was a derogatory term used to refer to members of the West Side Piru gang.
On February 16, 2009, a four-door gold Kia drove slowly by the Ho-Ching residence a number of times. Sheila recognized Filipo and another individual named Ross Ian Samana as two of the occupants of the vehicle the first two times it went by the house. Filipo flashed gang signs for S.O.S., called Maria Ho-Ching "a B word" and yelled "F Peanuts" and "I will be back." The third time the car drove by the house only appellant Filipo was in the car. Joe recognized the gang signs that Filipo flashed as being from the S.O.S. gang. He called his son Daniel Ho-Ching who lived nearby, to come over to see if he knew who the people were that were driving by his home.
Samana is not part of this appeal.
Daniel, driving a blue GMC Yukon arrived within minutes and his parents and sister told him about the vehicle circling their home. He drove around the neighborhood a few times but did not see it. He returned to his parents' house moments before a car pulled up outside. His parents and sister said, "That's him right there, that's the car right there." Daniel signaled to him indicating he wanted to talk to him. Filipo threw up the S sign, signifying S.O.S. and waved to Daniel to follow him.
Daniel proceeded to follow Filipo as he drove down the street. Filipo sped up at times and then slowed down as they drove through the neighborhood. At times Daniel followed bumper to bumper and at other times he was close to a hundred yards behind. Daniel called 9-1-1 and gave a description of the car and the license to the dispatcher. On one occasion when they were traveling bumper to bumper Daniel could see that Filipo was talking on his cell phone and overheard him say "Let's blast on these niggers, cuz." Daniel panicked a little and looked around to see if anyone was behind him.
Meanwhile, Maria called Daniel a number of times and when he did not answer the cell phone she became worried. Joe, Maria, Sheila and Faasooso all got in a four-door white Montego car and went to look for Daniel. Joe was driving with Maria in the front passenger seat and Sheila and Faasooso in the back seat. Joe drove around the neighborhood streets as Maria continued to call Daniel's cell phone.
As Joe was driving around looking for Daniel he spotted the Kia driven by Filipo and turned to follow it. When he turned the corner he saw Taituave who was standing between two cars on the left side of the street raise his hands up. Joe told his wife "My God, we are going to get shot." Joe heard the shots and one bullet hit his arm and another hit his chest. He told his wife "I got hit, I got shot." Maria heard several gunshots and one bullet hit the left side of her stomach. Sheila saw Taituave step out from between the cars on the sidewalk. He was wearing a black hoodie. She saw the flash from the muzzle of the gun as he started shooting. Joe told Sheila and Faasooso to get down on the floor and he continued driving until he got back to his home.
Daniel had to slow down because a truck was between him and Filipo and he was now about a block behind Filipo. When he got around the truck he saw Filipo turn. He also saw his parents' car turn down the same street behind Filipo. He sped up because he feared what was going to happen. As he turned onto the street to follow Filipo and his parents he saw appellant Taituave wearing dark clothing "step out from behind the shadows" and fire at least seven or eight shots at his parents' vehicle. Taituave then turned and fired three or four shots at Daniel. Daniel was not hit but two bullets struck his vehicle. He saw a number of people running towards a PT Cruiser before he reversed his vehicle and went back to his parents' house.
Ashley Tofi testified that on the evening of February 16, she and her friend Alicia Tafua went to the store with Taituave and then to Filipo's house in Alicia's PT Cruiser. Alicia was driving. Taituave received a telephone call and Ashley overheard him say "Who's following you? All right. I'll be right there. I am almost there." Alicia pulled the car over to the side of the road when they reached Filipo's house and Taituave got out. Ashley saw Filipo's car drive by followed by a light colored four-door car, and then a third vehicle that looked like a dark colored Tahoe. Ashley remained in the car with Alicia and heard gunshots. As Taituave got back into the car he said "Oh, shit, I dropped my clip, " and picked it up. Ashley told the investigating officers that when Taituave said "clip" she knew he was referring to a gun. Alicia, Ashley, and Taituave then drove to a bar in Orange County where they met up with Filipo.
Later that night, Officer Robert Guerrero, of the Long Beach Police Department, investigated the crime scene outside Filipo's residence. He found a total of 10 nine-millimeter bullet shell casings in the middle of the street.
All police personnel were from the Long Beach Police Department.
At approximately 1:15 a.m. the next morning, Officer Michael Hynes stopped a Kia driven by Filipo, a few blocks north of Taituave's residence. Filipo was detained and Officer Hynes conducted a search of the Kia. From the front passenger seat of the car he recovered a cell phone and a nine-millimeter Ruger magazine loaded with 10 bullets. There was an S.O.S. gang inscription on the phone and a search of the phone uncovered a picture of Taituave holding a firearm.
Officer Fernando Martinez questioned Taituave on the night of the shooting as part of the investigation. Taituave was standing inside the gate of his residence talking on a cell phone. He wore a black sweater and jeans and his hair was braided in cornrows. In executing a search warrant for Taituave's residence, Detective Hector Cardiel recovered a green military ammunition box from the garage. The box contained a nine-millimeter high-capacity magazine for a pistol, a box of 45 automatic ammunition, another box containing 357 Magnum rounds, and a bag containing assorted rounds of rifle and nine-millimeter Luger ammunition. The box also contained cleaning patches, Q-Tips, a toothbrush, a tool used to remove the front cap of a handgun, and a homemade tool with a screw on the end of it, all of which Detective Cardiel explained were used to clean handguns and rifles. Detective Cardiel also recovered a nine-millimeter gun with a fully loaded magazine that was wrapped in a T-shirt and hidden among a container of folded clothes.
Joe was hospitalized for three days and a bullet was removed from his right side. He had numerous surgery scars on his arm, shoulder and chest. Maria was hospitalized for six days and had surgery to remove a bullet from the lower part of her left abdomen.
Officer Robert Gonzalez was the investigating officer assigned to the case and spoke with the victims while they were at the hospital receiving treatment for their injuries. He showed them several photographic lineups (six-packs).
Joe identified Taituave as the person who shot him. He circled Taituave's photograph and wrote "That's the guy who shot at me." Joe also identified Taituave as the shooter at trial. He identified Filipo from the photographic lineup and at trial as the driver of the car that circled his home a number of times on February 16, 2009.
Maria identified Taituave from the photographic lineup shown to her by Officer Gonzalez. She circled Taituave's photograph and wrote "He is the one who shot me and my husband." At trial, she identified Taituave as the shooter, and Filipo as the driver of the car.
Daniel identified Taituave from the photographic lineups shown to him by Officer Gonzalez as the shooter. He circled the photograph of Taituave and wrote "Mikey, aka Tweeze, stepped out from behind the parked vehicle, left side of the street, and aimed, looked, and fired numerous rounds at my parents as they drove up and past him. He then turned towards me and fired a few rounds, striking my vehicle." Daniel circled Filipo's photograph and identified him as the driver of the Kia. He also identified Samana's photograph and wrote "Ross was present in the area of the shooting." At trial, Daniel identified Taituave as the shooter, and later on cross-examination said he was "80 percent" sure it was Taituave.
Sheila "appeared to be really uncomfortable" when looking at the photographic lineup conducted by Officer Gonzalez. She did not identify Taituave as the shooter but indicated that she knew him as "Mikey" and wrote "That's Twizz." She said the shooter wore a black sweatshirt, black pants, and a white T-shirt. At trial, she identified Taituave as the shooter.
Officer Gonzalez testified that all calls to the 9-1-1 dispatch are logged and the calls regarding the shooting were recorded at 9:24 p.m., on February 16, 2009. An examination of the telephone log for Filipo's cell phone showed an outgoing call was placed to Taituave's phone around that time. At 9:32 p.m. an outgoing call was made from Taituave's cell phone to Filipo's cell phone.
Troy Ward, a criminalist with the Long Beach Police Department crime lab, testified as a firearms expert. He opined that the shell casings found at the scene of the shooting to have come from either a Browning, Navy Arms, Ruger, or Tanfoglio firearm, and that the Ruger found at Taituave's residence was not the weapon that fired the shell casings. Tests conducted on the shell casings established that at one time they had been in the Ruger magazine found in Filipo's car.
Officer Jonathan Calvert, the prosecution's gang expert, testified that the West Side Pirus had approximately 30 to 40 documented members in Long Beach and associated with the Bloods gang. The area around the Ho-Ching residence was considered a Pirus enclave and Officer Calvert had previously contacted Blood and other Piru families who lived there. Sheila was an admitted member of the Pirus. S.O.S. was comprised of approximately 200 documented members in the Long Beach area and it was associated with the Crips gang. Officer Calvert testified that appellant Taituave, whose moniker is "Little Twizz" was a documented self-admitted member of S.O.S. He was heavily tattooed with the gang's logo and name and associated with other S.O.S. members. Filipo, whose gang moniker was "P.K." or "Piru Killer, " also had S.O.S. gang tattoos and admitted to Officer Calvert that he was a member of S.O.S.
In response to a hypothetical question based on the facts of the shootings on February 16, 2009, Officer Calvert opined the crimes were committed to benefit the S.O.S. gang. He based his opinion on "the totality of the circumstances" of the crimes as well as "the known documented affiliations of the suspects as well as the victim." Officer Calvert also testified that the dominance of a gang was illustrated by their ability to instill fear in the community. Witnesses were reluctant to come forward and testify, and in some cases even lied on the witness stand to avoid being labeled a snitch. A gang could find out the identity of such a snitch from communication with the defendants or when actual gang members attended the criminal proceedings. Officer Calvert recalled seeing dozens of S.O.S. gang members at the preliminary hearing and at the trial in this case, including Eni Tautolo whom he described as "an influential shot caller figure" in the S.O.S.
Filipo did not present any evidence on his behalf.
Officer Gabriel Garrido interviewed Daniel at approximately 9:30 p.m. on February 16, 2009. Daniel was unable to identify the shooter and he did not tell Officer Garrido that he overheard Filipo talking on his cell phone as he drove through the neighborhood.
Sheila identified Ross Samana as the shooter when shown a six-pack photographic lineup by Detective Tim Olson on February 17, 2009.
Officer Robert Ryan was advised that a possible suspect was in the rear residence at the shooting location. He detained Samana and recovered a black hooded sweatshirt that was found near the entrance to the front residence. In the late night or early morning hours of February 16, and February 17, 2009, when Officer Armando Manzo contacted Samana he was wearing a white T-shirt and gym shorts.
Detective Bobby Anguiano testified that it was important to isolate witnesses to prevent them from talking to other witnesses and being influenced by what they may be told. The witnesses were isolated when he performed the photographic lineups at the hospital.
(Respondent's Lodgment 4, pp. 2-9; People v. Taituave, 2012 WL 1681089, at *1-5).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. The evidence allegedly was insufficient to support Petitioner's conviction because the eyewitness identifications assertedly were "inherently improbable" and violated the Constitution (Ground One);
2. (a) The prosecutor allegedly committed misconduct, assertedly by: (i) eliciting testimony concerning booking sheets and arrests; (ii) using an allegedly improper hypothetical; and (iii) referring in closing argument to facts not in evidence; and (b) Petitioner's trial counsel allegedly rendered ineffective assistance by failing to object to the purported prosecutorial misconduct (Ground Two); and
3. The trial court allegedly committed judicial misconduct when the court denied Petitioner's motion for a new trial based on alleged prosecutorial misconduct (Ground Three).
DISCUSSION
The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
"AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis." Mardesich v. Cate , 668 F.3d 1164, 1171 (9th Cir. 2012).
Petitioner's conviction became final on October 16, 2012, upon the expiration of ninety days from the California Supreme Court's July 18, 2012 denial of Petitioner's petition for review. See Jimenez v. Quarterman , 555 U.S. 113, 119 (2009) ("direct review cannot conclude for purposes of § 2244(d)(1)(A) until the availability of direct appeal to the state courts, [citation], and to this Court, [citation] has been exhausted"); Bowen v. Roe , 188 F.3d 1157, 1159 (9th Cir. 1999) (period of "direct review" after which state conviction becomes final for purposes of section 2244(d)(1) includes the 90-day period for filing a petition for certiorari in the United States Supreme Court). Therefore, the statute of limitations commenced running on October 17, 2012, unless subsections B, C or D of 28 U.S.C. section 2244(d)(1) apply in the present case. See 28 U.S.C. § 2244(d)(1)(A); Porter v. Ollison , 620 F.3d 952, 958 (9th Cir. 2010) (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge).
Subsection B of section 2244(d)(1) is inapplicable. Petitioner does not allege, and the record does not show, that any illegal conduct by the state or those acting for the state "made it impossible for him to file a timely § 2254 petition in federal court." See Ramirez v. Yates , 571 F.3d 993, 1000-01 (9th Cir. 2009).
Subsection C of section 2244(d)(1) is also inapplicable. Petitioner does not assert any claim based on a constitutional right "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." See Dodd v. United States , 545 U.S. 353, 360 (2005) (construing identical language in section 2255 as expressing "clear" congressional intent that delayed accrual inapplicable unless the United States Supreme Court itself has made the new rule retroactive); Tyler v. Cain , 533 U.S. 656, 664-68 (2001) (for purposes of second or successive motions under 28 U.S.C. section 2255, a new rule is made retroactive to cases on collateral review only if the Supreme Court itself holds the new rule to be retroactive); Peterson v. Cain , 302 F.3d 508, 511-15 (5th Cir. 2002), cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity principles of Teague v. Lane , 489 U.S. 288 (1989), to analysis of delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)).
Section 2244(d)(1)(D) does not furnish an accrual date later than October 17, 2012, for Petitioner's claims. Under section 2244(d)(1)(D), the "due diligence' clock starts ticking when a person knows or through diligence could discover the vital facts, regardless of when their legal significance is actually discovered." Ford v. Gonzalez , 683 F.3d 1230, 1235 (9th Cir.), cert. denied, 133 S.Ct. 769 (2012); Hasan v. Galaza , 254 F.3d 1150, 1154 n.3 (9th Cir. 2001); see also United States v. Pollard , 416 F.3d 48, 55 (D.C. Cir. 2005), cert. denied, 547 U.S. 1021 (2006) (habeas petitioner's alleged "ignorance of the law until an illuminating conversation with an attorney or fellow prisoner" does not satisfy the requirements of section 2244(d)(1)(D)). Petitioner knew or should have known, no later than the denial of his new trial motion, the "vital facts" underlying his challenge to the eyewitness identification evidence, his claim of alleged prosecutorial conduct at trial, and his claim of ineffective assistance of counsel in failing to object to the alleged prosecutorial misconduct. Similarly, Petitioner knew or should have known, no later than the denial of his new trial motion, the "vital facts" underlying his claim that the trial court purportedly committed misconduct in denying the motion.
Later, the Court of Appeal discussed in its opinion, and rejected, Petitioner's claim that the prosecutor committed misconduct in closing argument, and co-defendant Taituave's claims challenging the eyewitness testimony, the prosecutor's introduction of evidence of booking sheets and prior arrests, the prosecutor's use of an allegedly improper hypothetical, and the trial court's denial of a motion for a new trial (see Respondent's Lodgment 4). Petitioner knew or should have known the contents of the appellate opinion shortly after its issuance. Additionally, a letter attached to Petitioner's supporting memorandum shows Petitioner's appellate counsel sent Petitioner the clerk's and reporter's transcripts on July 25, 2012 (see Pet. Mem., Ex. B). All of these events occurred well before Petitioner's conviction became final on October 16, 2012.
Accordingly, the AEDPA statute of limitations began running on October 17, 2012 and, absent tolling, would have expired on October 16, 2013. See Patterson v. Stewart , 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner constructively filed the present Petition on November 11, 2013, more than three weeks after October 16, 2013. Absent sufficient tolling, the Petition is untimely.
The Court assumes arguendo that Petitioner constructively filed the present Petition on its signature date of November 11, 2013. See Porter v. Ollison , 620 F.3d at 958 (prison mailbox rule applies to federal habeas petitions).
Section 2244(d)(2) tolls the statute during the pendency of "a properly filed application for State post-conviction or other collateral review." Petitioner did not file any state habeas petitions or other applications for state post-conviction review. Accordingly, no statutory tolling applies here. Absent application of equitable tolling or an equitable exception to the statute of limitations, the Petition is untimely.
AEDPA's statute of limitations is subject to equitable tolling "in appropriate cases." Holland v. Florida , 560 U.S. 631, 645 (2010) (citations omitted). "[A] petitioner' is entitled to equitable tolling' only if he shows (1) that he has been pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id . at 649 (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005)); see also Lawrence v. Florida , 549 U.S. 327, 336 (2007). The threshold necessary to trigger equitable tolling "is very high, lest the exceptions swallow the rule." Waldron-Ramsey v. Pacholke , 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 558 U.S. 897 (2009) (citations and internal quotations omitted). Petitioner bears the burden to show equitable tolling. See Zepeda v. Walker , 581 F.3d 1013, 1019 (9th Cir. 2009). Petitioner must show that the alleged "extraordinary circumstances" were the "cause of [the] untimeliness." Roy v. Lampert , 465 F.3d 964, 969 (9th Cir. 2006), cert. denied, 549 U.S. 1317 (2007) (brackets in original; quoting Spitsyn v. Moore , 345 F.3d 796, 799 (9th Cir. 2003)). Petitioner must show that an "external force" caused the untimeliness, rather than "oversight, miscalculation or negligence." Waldron-Ramsey v. Pacholke , 556 F.3d at 1011 (citation and internal quotations omitted).
Petitioner alleges that he relied on his appellate attorney's (correct) advice that Petitioner had one year and 90 days after the denial of the petition for review to file a federal habeas petition (Traverse, p. 3). Petitioner allegedly elected not to file a petition for certiorari in the United States Supreme Court, and states that when he arrived at the R.J. Donovan Correctional Facility the deadline to file had passed (id.). Petitioner alleges "the one-year and 90 days was hard pressing when [Petitioner] met a knowledgeable jailhouse lawyer that could assist [Petitioner] in the District Court with his habeas corpus" (id.). Petitioner's apparent decision to delay filing until after he reached the Donovan facility does not constitute an extraordinary circumstance beyond Petitioner's control meriting equitable tolling. Petitioner's alleged reliance on a jailhouse lawyer also does not merit equitable tolling. See Chaffer v. Prosper , 592 F.3d 1046, 1049 (9th Cir. 2010) (reliance on jailhouse helpers "who were transferred or too busy to attend to [petitioner's] petitions" did not justify equitable tolling). Petitioner's alleged lack of legal knowledge does not support equitable tolling in this case. See Waldron-Ramsey v. Pacholke , 556 F.3d at 1013 n.4 ("we have held that a pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling") (citation omitted); Rasberry v. Garcia , 448 F.3d 1150, 1154 (9th Cir. 2006) ("we now join our sister circuits and hold that a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling").
Petitioner's allegation that he was "transferred twice during the appeals process" (see Petitioner's Appeal, p. 1) does not show that any such alleged transfer prevented Petitioner from filing a timely federal petition after his conviction became final.
In Petitioner's Appeal, filed November 19, 2013, Petitioner alleges that "recently" the prison facility was placed on lockdown, assertedly preventing Petitioner and his legal assistant from accessing the prison law library to make photocopies (Petitioner's Appeal, p. 2). Petitioner does not explain why he could not have prepared his petition and made photocopies earlier. Furthermore, allegations concerning an asserted lockdown that occurred at a facility at which Petitioner allegedly arrived after the limitations deadline had already passed cannot show any entitlement to equitable tolling. See Ramirez v. Yates , 571 F.3d at 998 (ordinary prison limitations on library access due to confinement in administrative segregation insufficient to warrant equitable tolling).
Petitioner also appears to assert he is actually innocent (see Traverse, p. 4). "[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar... [or] expiration of the statute of limitations." McQuiggin v. Perkins , 133 S.Ct. 1924, 1928 (2013); see also Lee v. Lampert , 653 F.3d 929, 934-37 (9th Cir. 2011) (en banc). However, "tenable actual-innocence gateway pleas are rare." McQuiggin v. Perkins , 133 S.Ct. at 1928. The Court must apply the standards for gateway actual innocence claims set forth in Schlup v. Delo , 513 U.S. 298 (1995) ("Schlup"). See McQuiggin v. Perkins , 133 S.Ct. at 1928. "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id . (quoting Schlup , 513 U.S. at 329). Petitioner has presented no new evidence showing his supposed "actual innocence." See Schlup , 513 U.S. at 324.
In order to make a credible claim of actual innocence, a petitioner must "support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Schlup , 513 U.S. at 324; see also Griffin v. Johnson , 350 F.3d 956, 963 (9th Cir. 2003), cert. denied, 541 U.S. 998 (2004) (holding that "habeas petitioners may pass Schlup's test by offering newly presented' evidence of actual innocence"); Shumway v. Payne , 223 F.3d 982, 990 (9th Cir. 2000) ("[A] claim of actual innocence must be based on reliable evidence not presented at trial.").
Petitioner offers no new evidence showing his purported actual innocence. Petitioner's conclusory allegations are insufficient to meet the exacting Schlup actual innocence standard. See Eby v. Janecka, 349 Fed.App'x 247, 249 (10th Cir. 2009) (conclusory allegations of actual innocence insufficient to excuse untimeliness of petition); Sweet v. Delo , 125 F.3d 1144, 1152 n.9 (8th Cir. 1997), cert. denied, 523 U.S. 1010 (1998) (conclusory allegations of actual innocence insufficient to excuse procedural default); Herrera-Villate v. Knipp, 2012 WL 3631536, at *1 (C.D. Cal. Aug. 22, 2012) (conclusory allegations of actual innocence insufficient to excuse untimeliness of petition); Baran v. Hill, 2010 WL 466153, at *7 (D. Or. Feb. 9, 2010) (finding that petitioner's self-serving and unsupported statements were not "new and reliable" evidence sufficient to prove actual innocence); McArdle v. Sniff, 2009 WL 1097324, at *5 (C.D. Cal. Apr. 20, 2009) (same).
In sum, the Petition should be denied and dismissed as untimely.
In light of this recommended disposition, the Court need not, and does not, reach the exhaustion issues raised by Respondent. See Perez v. Hartley, 2013 WL 4208280, at *3 n.7 (C.D. Cal. Aug. 14, 2013) (court need not determine whether petitioner's claims are exhausted where those claims are untimely).
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.