Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Virginia A. Phillips, 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 April 25, 2013, bearing a signature and service date of April 14, 2013, and accompanied by an "Attachment A" and exhibits. Respondent filed an Answer on July 19, 2013, asserting that the Petition is untimely. On October 31, 2013, Petitioner filed a "Motion for Equitable Tolling" ("Pet. Motion"). On November 20, 2013, Petitioner filed a Traverse asserting, inter alia, that Petitioner's alleged actual innocence excuses the purported untimeliness of the Petition.
Although the first page of "Attachment A" to the Petition bears a signature date of April 15, 2013, the signature date on the form Petition and the proof of service attached thereto is April 14, 2013. The Court assumes without deciding that the correct date the Petition was signed and served was April 14, 2013.
On November 21, 2013, the Magistrate Judge ordered Respondent to file a Response addressing Petitioner's claim of alleged actual innocence and to lodge with the Court the Reporter's Transcript and Probation Report in Petitioner's criminal case, as well as any other documents Respondent might deem pertinent to the issue of Petitioner's alleged actual innocence. On January 2, 2014, Respondent filed a "Response to Petitioner's Claim of Actual Innocence, etc." and lodged various documents.
BACKGROUND
On May 5, 2010, a jury found Petitioner guilty of: (1) assault with a firearm on Crystal Zavala in violation of California Penal Code section 254(a) (Count 1); (2) making criminal threats to Zavala in violation of California Penal Code section 422 (Count 2); (3) assault by means of force likely to cause great bodily injury on Joel Gomez in violation of California Penal Code section 245(a)(1) (Count 3); (4) making criminal threats to Gomez in violation of California Penal Code section 422 (Count 4); and (5) possession of a firearm by a felon in violation of California Penal Code section 12021(a)(1) (Count 5) (Reporter's Transcript ["R.T."] 655-58; Clerk's Transcript["C.T."] 50-53, 104-08, 110-111, 131-32). The jury also found true the allegation that Petitioner personally used a firearm in the commission of the assault on Zavala (R.T. 656; C.T. 104, 110). On May 26, 2010, the court sentenced Petitioner to the high term of four years on Count 1, augmented by a 10-year enhancement pursuant to California Penal Code section 12022.5(a) (R.T. 904-05; C.T. 127). The court sentenced Petitioner to consecutive terms of one-third the middle term of two years on Counts 2 and 4, and a consecutive term of one-third the middle term of three years on Count 3 (R.T. 905; C.T. 128-29). The court imposed but stayed a consecutive high term of three years on Count 5 (R.T. 905; C.T. 130).
The Court of Appeal affirmed the judgment on August 24, 2011 (Respondent's Lodgment 2; see People v. Flores, 2011 WL 3717008 (Cal.App. Aug. 24, 2011)). On November 7, 2011, the California Supreme Court Clerk rejected for filing Petitioner's untimely petition for review (see Respondent's Lodgment 7, first exhibit thereto).
Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court, bearing a signature date of March 7, 2012 (Respondent's Lodgment 3). The Superior Court denied the petition in a written order on March 26, 2012 (Respondent's Lodgment 4).
On May 23, 2012, Petitioner filed a habeas corpus petition in the California Court of Appeal, bearing a signature date of May 18, 2012 (Respondent's Lodgments 5, 6). The Court of Appeal denied the petition on May 31, 2012 (Respondent's Lodgment 6).
On November 29, 2012, Petitioner filed a habeas corpus petition in the California Supreme Court, bearing a signature and service date of November 22, 2012 (Respondent's Lodgment 7). The California Supreme Court denied the petition summarily on February 20, 2013 (Respondent's Lodgment 8).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Flores, 2011 WL 3717008 (Cal.App. Aug. 24, 2011). See Slovik v. Yates , 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
On October 21, 2009, at his home in Los Angeles, defendant confronted his girlfriend Cristal Zavala about a hickey on her neck. During the ensuing argument, he pushed her against the wall. Zavala gave him back a ring he had given her and said she did not want to see him. Defendant always carried a gun in the back of his waistband. When Zavala tried to leave the house, he pulled out his gun, pointed it at her head, told her he was going to kill her and bury her, then put the gun away. At the time, Zavala was afraid for her life. She managed to get outside the house, but defendant kept on pushing her and telling her she was not going to leave. He kicked her from behind as she went through the gate. Out on the street, he followed Zavala down the block, shoving her several times and punching her once in the ribs. He told her again that he was going to kill her and that no one made fun of him. Before he turned back to go home, defendant said, "You're going to die, bitch." At trial, Zavala testified she was still afraid of defendant.
Defendant boarded his horse at a stable on a property in Sylmar where Zavala rented a room. On October 26, 2009, he went to check on the horse. Zavala and her neighbor Joel Gomez were sitting outside. Someone else who lived on the property asked defendant if he was going to let them make fun of him. Defendant then walked up to Gomez and hit him several times, knocking him to the ground and threatening to kill him. He continued to hit Gomez until the landlady intervened and stopped the beating. Gomez was so badly beaten that he was unable to get up without help. When Gomez finally sat up, defendant adjusted his gun and said he was not done; he would send someone over to kill Gomez. (Respondent's Lodgment 2, pp. 2-3; see People v. Flores, 2011 WL 3717008, at *2 (footnote renumbered).
At trial, defendant denied having any physical contact with Zavala or pointing a gun at her. He claimed to have hit Gomez once in self-defense. He denied threatening either of them.
PETITIONER'S CONTENTIONS
Although the Petition is somewhat unclear, it appears Petitioner asserts the following claims:
1. The trial court allegedly erred in giving a unanimity instruction (Pet., Attachment A, p. 8);
2. The sentencing court assertedly abused its discretion by imposing upper term sentences based on a prior conviction which the court allegedly mistakenly deemed to have been a felony (Pet., p. 5);
3. The sentencing court allegedly imposed upper term sentences based on facts assertedly not determined by a jury, in supposed violation of Apprendi v. New Jersey , 530 U.S. 466 (2000) ("Apprendi"), and Blakely v. Washington , 542 U.S. 296 (2004) ("Blakely") (Pet., Attachment A, pp. 1, 9);
4. The sentencing court assertedly relied on purportedly incorrect information concerning Petitioner's alleged probationary status, Petitioner's criminal history and the facts of the offenses (Pet., Attachment A, pp. 5-7);
5. The sentencing court allegedly erred by using the same facts to impose two upper term sentences on Counts 1 and 5 (Pet., Attachment A, p. 1);
6. The sentencing court allegedly erred by failing to stay the criminal threat counts (Pet., Attachment A, p. 8);
7. Petitioner's trial counsel allegedly rendered ineffective assistance at sentencing in various ways, including assertedly: (1) failing to investigate Petitioner's 1994 arrest, which supposedly was for a misdemeanor; (2) failing to object to the sentencing court's imposition of an upper term sentence based on the court's allegedly erroneous understanding concerning Petitioner's prior conviction and probation status; (3) failing to object to the alleged dual use of facts to impose upper term sentences; and (4) failing to object to the imposition of upper term sentences which assertedly violated Apprendi and Blakely (Pet., p. 5; Pet., Attachment A, pp. 1-3, 9);
8. Petitioner's appellate counsel allegedly rendered ineffective assistance, by assertedly failing to review the record and argue on appeal that Petitioner's sentence purportedly violated Apprendi and Blakely (Pet., p. 5; Attachment A, p. 1);
9. Petitioner assertedly is actually innocent of the firearm possession charge because Petitioner's prior conviction allegedly was a misdemeanor, not a felony (Pet. Attachment A, pp. 1, 4);
10. The evidence allegedly was insufficient to support Petitioner's conviction on the firearm possession charge (Pet. Mem., p. 10); and
11. Petitioner's sentence allegedly violated the Eighth Amendment (Pet., Attachment A, unnumbered first page).
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).
I. Accrual
Because Petitioner did not file a timely petition for direct review in the California Supreme Court, Petitioner's conviction became final on October 3, 2011, forty days after the Court of Appeal affirmed the judgment. See Waldrip v. Hall , 548 F.3d 729, 735 (9th Cir. 2008); Cal. R. Ct. 8.366(b)(1), 8.500(e)(1). Therefore, the statute of limitations commenced running on October 4, 2011, 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 4, 2011. 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.D.C. 2005), cert. denied, 547 U.S. 1021 (2006) (habeas petitioner's alleged "ignorance of the law until an illuminating conversation with an attorney or fellow prisoner" does not satisfy the requirements of section 2244(d)(1)(D)). Petitioner knew or should have known, no later than the conclusion of trial, the "vital facts" underlying his challenge to the sufficiency of the evidence, his claim of instructional error and his claim that he purportedly is "actually innocent" of the gun possession charge because he allegedly had not suffered a felony conviction. Petitioner knew or should have known, no later than the date of sentencing, the "vital facts" underlying his claims of alleged sentencing error, his challenge to an allegedly unconstitutional sentence, and his claims of trial counsel's alleged ineffectiveness in connection with sentencing. Petitioner knew or should have known, no later than the conclusion of Petitioner's direct appeal, the "vital facts" underlying his claims of ineffective assistance of appellate counsel in assertedly failing to review the record and challenge Petitioner's sentence on appeal.
Accordingly, the AEDPA statute of limitations began running on October 4, 2011 and, absent tolling, would have expired on October 3, 2012. See Patterson v. Stewart , 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner constructively filed the present Petition on April 14, 2013, more than six months after October 3, 2012. Absent sufficient tolling, or an equitable exception to the statute of limitations, the Petition is untimely.
The Court assumes arguendo that Petitioner filed the present Petition on its service date of April 14, 2013. See Porter v. Ollison , 620 F.3d at 958 (prison mailbox rule applies to federal habeas petitions).
II. Statutory Tolling
Section 2244(d)(2) tolls the statute of limitations during the pendency of "a properly filed application for State post-conviction or other collateral review." The statute of limitations is not tolled between the conviction's finality and the filing of Petitioner's first state habeas petition. See Porter v. Ollison , 620 F.3d at 958 (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge); Nino v. Galaza , 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000) (same).
Here, the statute ran for a period of 155 days from the date of October 4, 2011, to the date Petitioner constructively filed his first state habeas petition, March 7, 2012. The statute was tolled during the pendency of that petition, until March 26, 2012.
Petitioner constructively filed his next state habeas petition in the California Court of Appeal less than two months later, on May 18, 2012. In certain circumstances, a habeas petitioner may be entitled to "gap tolling" between the denial of a state habeas petition and the filing of a "properly filed" habeas petition in a higher state court. See Carey v. Saffold , 536 U.S. 214, 219-221 (2002). However, an untimely state application for post-conviction relief is not a "properly filed" petition for purposes of statutory tolling under section 2244(d)(2). See Pace v. DiGuglielmo , 544 U.S. 408, 412-13 (2005); Carey v. Saffold , 536 U.S. at 225 (California state habeas petition filed after unreasonable delay not "pending" for purposes of section 2244(d)(2)); see also Evans v. Chavis , 546 U.S. 189, 191 (2006) ("The time that an application for state postconviction review is pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law") (citation omitted).
Where, as here, a state court denies a collateral application without a "clear indication" that the application was timely or untimely, a federal habeas 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. at 198; see also Stewart v. Cate , 734 F.3d 995, 1000 (9th Cir. 2013); Banjo v. Ayers , 614 F.3d 964, 969 (9th Cir. 2010), cert. denied, 131 S.Ct. 3023 (2011) ("We cannot infer from a decision on the merits, or a decision without explanation, that the California court concluded that the petition was timely.") (citation omitted).
In California, a collateral application is timely if filed within a "reasonable time" after the petitioner learns of the grounds for relief. Carey v. Saffold , 536 U.S. at 235 (citations omitted). In Evans v. Chavis , the petitioner delayed over three years before filing his California Supreme Court habeas petition, and failed to provide justification for six months of the delay. Evans v. Chavis , 546 U.S. at 192, 201. The Supreme Court deemed the petition untimely, finding "no authority suggesting, ... [or] any convincing reason to believe, that California would consider an unjustified or unexplained 6-month filing delay reasonable.'" Id. at 201. Because California courts have given "scant guidance" on the issue, courts in this circuit apply a "thirty-to-sixty day benchmark" to determine the reasonableness of a delay in filing a subsequent state petition. Stewart v. Cate , 734 F.3d at 1001 (citation, internal quotations and footnote omitted).
Here, the interval between the Superior Court's denial and the filing of the Court of Appeal petition is not so lengthy as to preclude the Court of Appeal petition from having been "properly filed." See Evans v. Chavis , 546 U.S. at 191 (suggesting that a gap of 30 to 60 days could be reasonable); Chaffer v. Prosper , 592 F.3d 1046, 1048 (9th Cir. 2010) (petitioner was not entitled to gap tolling for unjustified gaps of 115 and 101 days, which were "substantially longer than the 30 to 60' days that most States' allow for filing petitions"). Indeed, Respondent concedes that gap tolling is appropriate between the denial of Petitioner's Superior Court petition and the filing of his Court of Appeal petition (see Answer, p. 5). Accordingly, Petitioner is entitled to statutory tolling from the constructive filing of his Superior Court petition on March 7, 2011, through May 31, 2012, the date the Court of Appeal denied the petition filed in that court. At that time, 210 days remained in the limitations period.
Petitioner is not entitled to statutory gap tolling during the period of nearly six months between the Court of Appeal's May 31, 2012 denial and November 22, 2012, the date Petitioner constructively filed his California Supreme Court habeas petition. In the present proceeding, Petitioner provides no explanation for this delay. The only purported explanation Petitioner provided in his California Supreme Court petition was: "Counsel at trial and on Appeal were ineffective and Petitioner is a layman in law. Petitioner is being assisted." (Respondent's Lodgment 7, seventeenth page). These vague allegations cannot justify Petitioner's delay of nearly six months in filing the California Supreme Court petition. See Stephen v. Holland, 2013 WL 3872505, at *4 (E.D. Cal. July 25, 2013) (vague allegations insufficient to justify delay); Turner v. Busby, 2010 WL 4923005, at *1 (C.D. Cal. Nov. 30, 2010) (vague and conclusory explanation for delay insufficient). An unjustified delay of this duration does not qualify for gap tolling. See Evans v. Chavis , 546 U.S. at 201 ("unexplained, hence unjustified, delay of at least six months" unreasonable); Stewart v. Cate , 734 F.3d at 1001-03 (100-day delay unreasonable where petitioner failed to show good cause for the delay); Stancle v. Clay , 692 F.3d 948, 956 (9th Cir. 2012), cert. denied, 133 S.Ct. 1465 (2013) (unjustified delay of 82 days unreasonable); Velasquez v. Kirkland , 639 F.3d 964, 968 (9th Cir.), cert. denied, 132 S.Ct. 554 (2011) (gap of 80 days unreasonable); Garcia v. Barnes, 2013 WL 3381323, at *6 (C.D. Cal. July 3, 2013) ("Typically gaps longer than sixty days are considered unreasonable"); compare Noble v. Adams , 676 F.3d 1180, 1183-84 (9th Cir. 2012) (remanding for determination whether delay of four and a half months was reasonable, where district court had not determined the issue).
Therefore, the statute ran for the remaining 210 days from June 1, 2012, until the statute expired in late December of 2012. Because Petitioner's untimely California Supreme Court petition was not "properly filed, " Petitioner also is not entitled to statutory tolling during that petition's pendency. In any event, even if the statute were tolled during the pendency of Petitioner's California Supreme Court petition (from November 22, 2012 to February 20, 2013), the present Petition still would be untimely. Assuming such tolling arguendo, when any such tolling would have begun on November 22, 2012, 329 days would have elapsed in the limitations period. When the running of the statute would have resumed on February 21, 2013 (the date after the California Supreme Court's denial), Petitioner would have had only 36 days, or until March 29, 2013, to file a timely federal Petition. Petitioner did not constructively file the present Petition until April 14, 2013, over two weeks after the limitations period would have expired. Absent sufficient equitable tolling, or an equitable exception to the statute of limitations, the statute of limitations bars the Petition.
This 329 day total comprises 155 days from the date Petitioner's conviction became final to the date Petitioner constructively filed his Superior Court petition plus 174 days from the date the Court of Appeal denied Petitioner's habeas petition to November 21, 2012, the date before Petitioner constructively filed his California Supreme Court petition.
III. Equitable Tolling
AEDPA's statute of limitations is subject to equitable tolling "in appropriate cases." Holland v. Florida , 560 U.S. 631, 130 S.Ct. 2549, 2560 (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., 130 S.Ct. at 2562 (quoting Pace v. DiGuglielmo , 544 U.S. at 418); 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).
In his Motion for Equitable Tolling, Petitioner appears to assert an entitlement to equitable tolling based on Petitioner's alleged confinement in administrative segregation for an unspecified period of time (Pet. Motion, p. 2). Petitioner appears to allege that he was unable to contact the jailhouse lawyer "helping [Petitioner] with [his] work, " and that he "lost touch of [his] case" (id.). In his Traverse, Petitioner contends that, during his alleged confinement in administrative segregation, Petitioner assertedly did not have access to his paperwork or to the law library (Traverse, p. 6). In Petitioner's Superior Court and Court of Appeal petitions, Petitioner explained that, due to his alleged illiteracy and inadequate understanding of the law, Petitioner "was brought to see the error in sentencing by other inmates" (Respondent's Lodgment 3, p. 6; Respondent's Lodgment 5, p. 6). As indicated previously, in Petitioner's California Supreme Court petition, Petitioner purportedly explained his delay by alleging: "Counsel at trial and on appeal were ineffective and Petitioner is a laymen in [sic] law. Petitioner is being assisted." (Respondent's Lodgment 7, p. 6).
Petitioner does not specify the dates or duration of his alleged confinement in administrative segregation. Nor does Petitioner attempt to explain how his alleged confinement prevented Petitioner from filing a timely federal petition. Petitioner also does not specify the dates or duration of his alleged loss of contact with his jailhouse lawyer. Moreover, it affirmatively appears that Petitioner did have the assistance of other inmates at the time Petitioner filed his state court petitions. Petitioner has not shown any entitlement to equitable tolling based on the effects of administrative segregation. See Ramirez v. Yates , 571 F.3d 993, 998 (9th Cir. 2009) (ordinary prison limitations on library access due to confinement in administrative segregation insufficient). Additionally, Petitioner's alleged lack of legal knowledge or sophistication 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"); Cruz v. Allison, 2011 WL 3101807, at *2 (C.D. Cal. June 20, 2011), adopted, 2011 WL 3103421 (C.D. Cal. July 22, 2011) (lack of assistance of trial and appellate counsel as an explanation for the untimeliness of the petition does not give rise to any basis for invoking the doctrine of equitable tolling").
Petitioner's conclusory assertions that the alleged ineffective assistance of trial and appellate counsel prevented a timely filing also are also insufficient to warrant equitable tolling. See Holland v. Florida , 130 S.Ct. at 2564 (a "garden variety claim of excusable neglect" does not merit equitable tolling); Lawrence v. Florida , 549 U.S. at 336-37 ("Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel [citation]."); Velasquez v. Kirkland , 639 F.3d at 969 (petitioner "must have been delayed by circumstances beyond his direct control, and not be his or his counsel's own mistake") (citation, internal brackets and quotations omitted).
Accordingly, Petitioner has not shown any entitlement to equitable tolling.
IV. Alleged Actual Innocence
"[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar... [or] expiration of the statute of limitations." McQuiggin v. Perkins , 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).
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.").
"[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States , 523 U.S. 614, 623 (1998); Calderon v. Thompson , 523 U.S. 538, 559 (1998); Muth v. Fondren , 676 F.3d 815, 819, 822 (9th Cir.), cert. denied, 133 S.Ct. 292 (2012). "The evidence of innocence must be so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'" Lee v. Lampert , 653 F.3d at 937-38 (quoting Schlup , 513 U.S. at 316). The court must consider "all the evidence, old and new, incriminating and exculpatory, ' admissible at trial or not." Lee v. Lampert , 653 F.3d at 938 (quoting House v. Bell , 547 U.S. 518, 538 (2006). The court must make a "probabilistic determination about what reasonable, properly instructed jurors would do." Id . (quoting House v. Bell , 547 U.S. at 538).
Petitioner contends he is actually innocent of the gun possession charge because the predicate prior conviction supposedly was a misdemeanor, not a felony (Pet., Attachment A, p. 4; Traverse, p. 5). Petitioner cites California Penal Code section 17(b)(1). At the time of Petitioner's sentencing, this statute provided that, when a crime was punishable in the discretion of the court either by imprisonment in the state prison or imprisonment in a county jail, "it [was] a misdemeanor for all purposes under the following circumstances: (1) After a judgment imposing a punishment other than imprisonment in the state prison...."
Section 17(b)(1) now provides:
The record shows the following:
Count 5 of the Information (possession of a firearm by a felon) alleged that Petitioner had suffered a prior conviction for violation of California Health and Safety Code section 11350(a) on May 3, 1994 (C.T. 52). Petitioner stipulated at trial as to Count 5 that he had suffered a prior felony conviction (R.T. 1-2). Petitioner admitted in his trial testimony that he had been arrested and convicted for possession of cocaine in "95 [sic]" a conviction which he agreed was "the felony conviction" (R.T. 391). Petitioner also admitted in his trial testimony that: (1) in 1994 Petitioner was arrested for possession of cocaine base; (2) Petitioner subsequently was convicted of possession of a controlled substance; and (3) Petitioner was placed on probation for that offense (R.T. 397-98).
At sentencing, Petitioner's counsel told the court that Petitioner's criminal history included a 2008 conviction for reckless driving and a 2009 "unlicensed driver charge, " and then added: "94 he's got an 11350" (R.T. 901). Petitioner's counsel said, without contradiction, that it appeared those were Petitioner's only convictions (R.T. 901).
The Probation Report reflects that Petitioner suffered a 1994 conviction for possession of a controlled substance in violation of California Health and Safety Code section 11350(a), for which Petitioner received a sentence of 36 months probation and 100 days in jail (Respondent's Lodgment, Probation Report, p. 117).
The Reporter's Transcript records that, at sentencing, the court said: "I do intend to impose an upper term based on the fact the defendant not only has a prior felony conviction that was not alleged, but was on probation on two separate instances at the time of the commission of the offense [sic]..." (R.T. 904).
The statement that the prior felony conviction was "not alleged" may be an error (in transcription or otherwise). The prior felony conviction alleged in the Information, a 1994 conviction for violation of California Health and Safety Code section 11350 in Los Angeles Superior Court case number "?A016560 (first character obscured), appears to be the same felony conviction described in the Probation Report as having been incurred in "San Fernando Court case number TA016560-1, " and the same felony conviction to which Petitioner's counsel referred at sentencing (C.T. 52; Respondent's Lodgment, Probation Report, p. 117; R.T. 901). Any error in the judge's reported statement at sentencing is immaterial to the issue presented here: whether Petitioner was "actually innocent" of the gun possession charge because he assertedly had no predicate felony conviction.
Petitioner's "actual innocence" claim is untenable for several reasons. First, Petitioner's admission of the felony prior conviction and his sworn trial testimony that he had suffered a prior felony conviction effectively doom the claim. See Johnson v. Knowles , 541 F.3d 933, 937-38 (9th Cir. 2008), cert. denied, 556 U.S. 1211 (2009) (petitioner's concession of guilt "fatal to his untimely habeas petition"). Second, Petitioner has presented no new evidence regarding his supposed "actual innocence" of the gun charge which was not presented at trial or sentencing. See Schlup , 513 U.S. at 324 (petitioner must support an "actual innocence" claim with "new reliable evidence... that was not presented at trial").
Third and finally, the record refutes Petitioner's claim of actual innocence, as discussed below.
At the time of Petitioner's 1994 conviction (and indeed at the time of the conviction and sentence challenged in the instant Petition), California law defined a felony as a crime punishable by death or imprisonment in state prison. Former California Penal Code section 17(a). Every other crime was, and is, either a misdemeanor or an infraction. Id . Certain offenses, known colloquially as "wobblers, " are punishable either by a prison sentence or by fine or incarceration in the county jail. See California Penal Code § 17(b); People v. Williams , 49 Cal.App.4th 1632, 1639 & n.2, 57 Cal.Rptr.2d 448 (1996) ("A wobbler is a special class of crime which could be classified and punished as a felony or misdemeanor depending upon the severity of the facts surrounding its commission.") (citations, quotations and brackets omitted). "However, unless an alternate punishment is authorized by statute, a trial court has no power to reduce a straight felony to a misdemeanor." People v. Myers , 170 Cal.App.4th 512, 516, 87 Cal.Rptr.3d 916 (2009) (citations omitted).
As amended by the 2011 Realignment Act, section 17(a) now defines a felony as "a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170."
At the time of Petitioner's 1994 conviction, California Health and Safety Code section 11350(a) provided that a person who possessed cocaine or cocaine base "shall be punished by imprisonment in the state prison." Former Cal. Health & Safety Code § 11350(a); see People v. Martin , 169 Cal.App.4th 822, 826, 86 Cal.Rptr.3d 858 (2009) ("A violation of section 11350(a) can... be based on possession of either cocaine base or cocaine."). The crime was a straight felony, not a wobbler or a misdemeanor, and hence could not be reduced to non-felony status. See People v. Myers , 170 Cal.App.4th at 516-17 (court had no authority to reduce section 11350 conviction for possession of cocaine to a misdemeanor following defendant's completion of drug treatment probation); People v. Mauch , 163 Cal.App.4th 669, 674-75, 77 Cal.Rptr.3d 751 (2008) (court lacked authority to reduce felony conviction for cultivation of marijuana to a misdemeanor pursuant to Penal Code section 17(b), where offense was a straight felony); People v. Mendez , 234 Cal.App.3d 1773, 1779, 286 Cal.Rptr. 216, 220 (1991) (California Penal Code section 17 "does not authorize the reduction of straight felonies to misdemeanors...." (citation and footnote omitted). Although it appears that in the 1994 case Petitioner received a sentence of probation and 100 days in jail, the leniency of that sentence did not alter the felony nature of the crime. Therefore, Petitioner has failed to show that his prior conviction could not serve as a predicate felony for the gun possession charge. Hence, Petitioner has failed to show "actual innocence" of the gun possession charge. The equitable exception to the statute of limitations has no application in the present case.
Section 11350(a) was amended in 2011 as part of the Realignment Act and now provides that a sentencing court may sentence a felony offender "pursuant to subdivision (h) of Section 1170 of the Penal Code." Section 1170(h) authorizes a sentencing court to impose a felony term of incarceration to be served in a county jail, unless the defendant has suffered certain prior felony convictions, but the section applies prospectively only to those sentenced on or after October 1, 2011. See Cal. Penal Code sections 1170(h)(1), (2), (3).
California Penal Code section 1203.1(a) authorizes a court to impose a jail term as a condition of felony probation. People v. Mauch , 163 Cal.App.4th at 677 ("Simply put, under section 1203.1, any fine or county jail term the trial court imposes is not imposed as punishment, but rather as a condition of probation.") (citation omitted). It does not authorize reduction of a straight felony to a misdemeanor. See id.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) denying Petitioner's "Motion for Equitable Tolling"; and (3) directing that Judgment be entered denying and dismissing the Petition with prejudice.
When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:
(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.
The statute was amended as part of California's 2011 Realignment Act, enacted to shift responsibility for housing and supervising certain felony offenders from the state to individual counties. See People v. Montrose , 220 Cal.App.4th 1242, 1246, 163 Cal.Rptr.3d 732 (2013). As discussed below, the Realignment Act authorizes a sentencing court to impose a felony term to be served in county jail, unless the defendant has suffered certain prior felony convictions, but the statute applies prospectively only to those sentenced on or after October 1, 2011. See Cal. Penal Code §§ 1170(h)(1), (2), (3).