Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Percy Anderson, 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 August 6, 2013, consisting of a form petition ("Form Pet."), a memorandum addressing the alleged timeliness of the Petition ("Pet. Mem. I"), a memorandum addressing the alleged merits of the Petition ("Pet. Mem. II") and exhibits ("Pet. Exs."). The Petition bears a signature date of July 25, 2013. Respondent filed an Answer on September 11, 2013, asserting that the Petition is untimely. Petitioner filed a "Denial and exception to the return, etc." on October 24, 2013, constituting Petitioner's Reply ("Reply").
The Proof of Service attached to the Petition states that Petitioner served the Petition on June 25, 2013 (see Pet. Exs., ECF Docket No. 1-9, p. 22). The form Petition and the second supporting memorandum bear signature dates of July 23, 2013. Thus, the earliest Petitioner could have served the Petition was July 23, 2013.
BACKGROUND
The State charged Petitioner with four counts of committing a lewd act on a child under the age of fourteen years in violation of California Penal Code section 288(a), six counts of committing a lewd act on a child by force or fear within the meaning of California Penal Code section 288(b)(1), two counts of rape of a child under the age of fourteen and seven years or more younger than the perpetrator in violation of California Penal Code section 269(a)(1), and one count of oral copulation of a child under the age of fourteen and seven years or more younger than the perpetrator in violation of California Penal Code section 269(a)(4) (Pet. Exs., ECF Docket No. 1-9, pp. 11, 13). The State also alleged that Petitioner had suffered a prior juvenile robbery conviction qualifying as a strike within the meaning of California's Three Strikes Law, California Penal Code sections 667(b) - (I) and 1170.12(a) - (d) (Pet. Exs., ECF Docket No. 1-9, p. 14).
The Attachments to the Petition do not bear consecutive page numbers. The Court uses the ECF Docket pagination.
The Three Strikes Law consists of two nearly identical statutory schemes. The earlier provision, enacted by the Legislature, was passed as an urgency measure, and is codified as California Penal Code §§ 667(b) - (I) (eff. March 7, 1994). The later provision, an initiative statute, is embodied in California Penal Code § 1170.12 (eff. Nov. 9, 1994). See generally People v. Superior Court (Romero) , 13 Cal.4th 497, 504-05, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996). The court sentenced Petitioner under both versions (Pet. Exs., ECF Docket No. 1-9, p. 19).
On July 31, 2007, Petitioner pled nolo contendere to three counts of committing a lewd act on a child under the age of fourteen years in violation of California Penal Code section 288(a), and admitted the prior conviction allegation (Pet., p. 2; Pet. Exs., ECF Docket No. 1-8, pp. 48-49, ECF Docket No. 1-9, pp. 17-20). On that date, the Superior Court sentenced Petitioner to a term of twelve years, doubled pursuant to the "One Strike" provision of the Three Strikes Law, California Penal Code sections 667(e)(1) and 1170.12(c)(1), for a total term of twenty-four years (Pet. Exs., ECF Docket No. 1-9, pp. 18-20). Petitioner did not appeal (Pet., p. 2).
Approximately three years later, on August 16, 2010, the Los Angeles County Superior Court received a "letter" from Petitioner requesting that the court set aside the judgment that Petitioner's juvenile robbery conviction qualified as a strike (Pet. Exs., ECF Docket No. 1-5, p. 20). The Superior Court denied Petitioner's request in a written order filed September 23, 2010 (id.).
Petitioner attached to his Court of Appeal petition in case number B234651 a document bearing the Superior Court caption and titled "Motion to Set Aside the Judgment, etc." (Respondent's Lodgment 1, first exhibit thereto), the pages of which appear to be out of order. The document bears a signature date of August 11, 2010, but does not bear a file stamp. Although it is unclear whether this document is the "letter" mentioned in the Superior Court's August 23, 2010 Order, the Court assumes arguendo that Petitioner filed a motion or request to vacate the judgment in the Superior Court on August 11, 2010.
Petitioner filed a habeas corpus petition in the California Court of Appeal on July 26, 2011, in case number B234651, which that court denied summarily on August 3, 2011 (Respondent's Lodgments 1, 2).
On July 30, 2012, the Los Angeles County Superior Court received a habeas corpus petition from Petitioner, which that court denied in a written order filed August 20, 2012 (Pet. Exs., ECF Docket No. 1-9, pp. 1-2).
On October 31, 2012, Petitioner submitted to the Superior Court a notice designating clerk's and reporter's transcripts (Pet. Exs, ECF Docket No. 1-5, pp. 22-25; ECF Docket No. 1-6, pp. 1-2). On November 9, 2012, a Superior Court clerk wrote Petitioner stating, inter alia, that an appeal would be untimely and that transcripts would not be prepared unless a case was on appeal (Pet. Exs., ECF Docket No. 1-6, p. 4).
Petitioner filed a habeas corpus petition in the California Court of Appeal on October 18, 2012, in case number B244597, which that court denied summarily on November 8, 2012 (Respondent's Lodgments 3, 6). Petitioner filed another habeas corpus petition in the California Court of Appeal on December 19, 2012, in case number B245775, which that court denied on January 9, 2013, on the ground that the petition was identical to Petitioner's earlier petition in case number B244597 (Respondent's Lodgments 5, 6).
In the meantime, Petitioner filed a habeas corpus petition in the California Supreme Court on December 18, 2012, in case number S207422, which that court denied on April 10, 2013, with a citation to In re Robbins , 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998), signifying that the petition was untimely (Pet. Ex. 1; Respondent's Lodgments 4, 7).
See Walker v. Martin , 131 S.Ct. 1120, 1124 (2011); Gaston v. Palmer , 417 F.3d 1030, 1036-37 (9th Cir. 2005), modified, 447 F.3d 1165 (9th Cir. 2006), cert. denied, 549 U.S. 1134 (2007); Bennett v. Mueller , 322 F.3d 573, 578-79 (9th Cir.), cert. denied, 540 U.S. 938 (2003).
PETITIONER'S CONTENTIONS
Petitioner contends his trial counsel rendered ineffective assistance, allegedly by: (1) failing to investigate Petitioner's prior juvenile robbery conviction and to discover that the juvenile conviction purportedly did not qualify as a strike because the robbery allegedly was neither serious nor violent; (2) failing to challenge the use of the prior conviction as a strike on separation of powers grounds; (3) failing to challenge the use of the prior conviction as a strike under Apprendi v. New Jersey , 530 U.S. 466 (2000); (4) failing to inform Petitioner of the consequences of admitting the strike allegation; and (5) advising Petitioner to accept a plea bargain and admit the strike, assertedly without obtaining and using the records of the prior juvenile conviction (Form Pet., p. 5; Pet. Mem. II, pp. 1-5).
DISCUSSION
I. Introduction
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).
II. Accrual
Because Petitioner did not appeal, his conviction would have become final on September 29, 2007, sixty days from the date of sentencing, had that day not been a Saturday. See Mendoza v. Carey , 449 F.3d 1065, 1067 (9th Cir. 2006); People v. Knauer , 206 Cal.App.3d 1124, 1127 & n.2, 253 Cal.Rptr. 910 (1988); Cal. Ct. R. 8.308(a). However, because that day was a Saturday, Petitioner's conviction became final the following Monday, October 1, 2007. See Cal. Code Civ. Proc. §§ 12, 12a, 135. Therefore, the statute of limitations commenced running on October 2, 2007, 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. In the Reply, Petitioner appears to argue that he filed his July 2013 Superior Court petition less than 60 days after removal of an unidentified impediment (Reply, p. 3). Petitioner's conclusory allegation does not suffice to show delayed accrual under section 2244(d)(1)(B). Petitioner references an exhibit to his December 2012 California Supreme Court petition consisting of a letter Petitioner purportedly wrote to his counsel in May 2012 requesting his file and counsel's alleged response stating that she did not have Petitioner's file (Reply, p. 3, citing Pet. Exs., ECF Docket No. 1-8, pp. 37-38). Petitioner does not explain how this correspondence, or any other supposed impediment, prevented Petitioner from filing a timely federal petition. In any event, no 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)). To the extent Petitioner may contend that Missouri v. Frye , 132 S.Ct. 1399 (2012) ("Frye") or Lafler v. Cooper , 132 S.Ct. 1376 (2012) ("Lafler"), entitle Petitioner to deferred accrual, any such claim lacks merit. See Baker v. Ryan , 497 Fed.App'x 771, 773 (9th Cir.), cert. denied, 133 S.Ct. 2867 (2012) ("Lafler and Frye do not recognize new constitutional rights" within the meaning of section 2244(d)(1)(C)); Buenrostro v. United States , 697 F.3d 1137, 1140 (9th Cir. 2012) (same); accord, In re Liddell , 722 F.3d 737, 738-39 (6th Cir. 2013); In re Graham , 714 F.3d 1181, 1183 (10th Cir. 2013); Gallagher v. United States , 711 F.3d 315, 315-16 (2d Cir. 2013); In re Perez , 682 F.3d 930, 933-34 (11th Cir. 2012).
Section 2244(d)(1)(D) does not furnish an accrual date later than October 2, 2007, 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.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 sentencing, the "vital facts" underlying Petitioner's claims of ineffective assistance of counsel. Petitioner appears to allege that he was unaware of the factual predicates of his claims until he received the May 2012 letter from counsel informing Petitioner that counsel did not then have a copy of Petitioner's juvenile court file (see Reply, p. 7, citing Pet. Exs., ECF Docket No. 1-4, p. 28). This apparent allegation must be rejected. What counsel did and failed to do during the Superior Court proceedings, and the consequences of those actions and omissions, were manifest by the time of Petitioner's sentencing. The fact, if it is a fact, that five years later counsel did not have a copy of Petitioner's juvenile file is not the factual predicate for any of Petitioner's claims. Petitioner also appears to argue that he was unaware of any alleged prejudice to Petitioner from counsel's asserted ineffectiveness until the receipt of counsel's May 2012 letter (see Reply, pp. 7-8). However, Petitioner knew (or reasonably should have known) no later than the time of sentencing the alleged prejudice to Petitioner from counsel's asserted ineffectiveness: the One Strike, twenty-four year sentence Petitioner received on July 31, 2007.
Furthermore, the record shows Petitioner had actual knowledge, well before May of 2012, that his attorney purportedly had proceeded at sentencing without Petitioner's juvenile record. In his Court of Appeal habeas petition in case number B234651, filed July 26, 2011, Petitioner alleged that counsel told Petitioner that she would obtain the record but advised Petitioner to enter the plea and said she thereafter would "call petitioner back to court" (Respondent's Lodgment 1, supporting memorandum, p. 6). Petitioner also attached to that petition a motion to set aside the judgment filed in the Superior Court, apparently bearing a signature date of August 11, 2010 (the pages of the motion are out of order) which contained the same allegation (id., attached motion, pp. i, 6, 12). The present Petition would be untimely even if the accrual of Petitioner's claims were delayed until 2010 or 2011.
Accordingly, the statute of limitations began running on October 2, 2007, and expired on October 1, 2008. See Patterson v. Stewart , 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner constructively filed the present Petition on July 23, 2013, more than four and a half years after the limitations period expired. Absent sufficient tolling or an equitable exception, the Petition is barred by the statute of limitations.
The Court assumes arguendo that Petitioner filed the present Petition on its signature date of July 23, 2013. See Porter v. Ollison , 620 F.3d at 958 (prison mailbox rule applies to federal habeas petitions).
III. 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. Here, statutory tolling cannot aid Petitioner. Even assuming arguendo Petitioner's August 11, 2010 motion to set aside the judgment otherwise would suffice to trigger statutory tolling, Petitioner constructively filed that motion nearly two years after the statute of limitations had expired. Petitioner's state court applications for collateral review filed after the expiration of the limitations period cannot revive or otherwise toll the statute. See Ferguson v. Palmateer , 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Jiminez v. Rice , 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003) (filing of state habeas petition "well after the AEDPA statute of limitations ended" does not affect the limitations bar); Webster v. Moore , 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 (2000) ("[a] state-court petition... that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled"). Therefore, absent sufficient equitable tolling or an equitable exception, the Petition is barred by the statute of limitations.
IV. 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. 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). Federal law, not state law, governs equitable tolling of the habeas statute of limitations. See Holland v. Florida , 130 S.Ct. at 2563 ("Equitable tolling... asks whether federal courts may excuse a petitioner's failure to comply with federal timing rules, an inquiry that does not implicate a state court's interpretation of state law.") (citation omitted).
Therefore, Petitioner's arguments that good cause purportedly existed for his delay under state law standards does not advance Petitioner's argument for equitable tolling.
A. Background
Petitioner asserts an entitlement to equitable tolling based on Petitioner's alleged need to investigate and obtain court transcripts and records concerning his juvenile proceeding (see Pet. Mem. II, pp. 6-12). In support of this contention, Petitioner relies on documents purporting to show the following:
On February 19, 2008, Petitioner wrote to the Ward Master File Unit of the Division of Juvenile Justice, requesting information from his juvenile case (Respondent's Lodgment 1, Ex. A). On February 21, 2008, a correctional case records analyst responded indicated that the file was no longer in existence, but enclosed a copy of Petitioner's "Register of Actions" card (id.).
In or about April 2008, Petitioner allegedly filed a motion in the Los Angeles County Superior Court requesting a copy of the transcripts of the juvenile proceeding (Pet. Exs., ECF Docket No. 1-4, pp. 1-5; Respondent's Lodgment 1, Ex. C). On May 13, 2008, a Superior Court management analyst responded that the transcript for the date requested had been destroyed (Pet. Exs., ECF Docket No. 1-4, p. 7; Respondent's Lodgment 1, Ex. C).
On May 28, 2010, Petitioner sent a letter to counsel requesting his juvenile records and any other information in counsel's possession concerning Petitioner's strike (Pet. Exs., ECF Docket No. 1-4, pp. 9-11; Respondent's Lodgment 1, Ex. B). On July 14, 2010, Petitioner wrote to the district attorney's office requesting "all records used to prove the prior conviction of Robbery" and all police reports concerning the robbery (Pet. Exs., ECF Docket No. 1-5, pp. 8-9; Respondent's Lodgment 1, Ex. G). Also on that date, Petitioner wrote to the "Foothill Division" of the Los Angeles County Sheriff's Department requesting his records in the juvenile case (Pet. Exs., ECF Docket No. 1-4, pp. 40-41). On July 22, 2010, the Los Angeles Police Department Commanding Officer of the Records and Identification Division wrote to Petitioner denying the request (Pet. Exs., ECF Docket No. 1-4, p. 43).
On September 12, 2010, Petitioner executed a "power of attorney" to "Tamara J. Duncan, " purporting to confer the right to obtain legal documents or records (Pet. Exs., ECF Docket No. 1-5, pp. 15-17). On October 25, 2010, an official of the Bureau of Branch and Area Operations of the Los Angeles County District Attorney's Office wrote to Ms. Duncan enclosing a copy of the felony complaint and information but otherwise denying Ms. Duncan's reported request for records assertedly exempt from disclosure under state law (Pet Exs., ECF Docket No. 1-5, p. 18).
On August 31, 2011, Petitioner sent a letter to the Superior Court clerk requesting issuance of a subpoena duces tecum to the Los Angeles Police Department Custodian of Records (Pet. Exs., ECF Docket No. 1-4, p. 45). On September 18, 2011, Petitioner caused to be served a subpoena duces tecum on the Los Angeles Police Department Custodian of Records, requesting Petitioner's juvenile court records (Pet. Exs., ECF Docket No. 1-4, pp. 47-49).
On September 28, 2011, Petitioner wrote another letter to his counsel requesting Petitioner's file (Pet. Exs., ECF Docket No. 1-4, pp. 13-14). Also on September 28, 2011, Plaintiff wrote a letter to the Los Angeles County Archives requesting records pertaining to his prior juvenile proceeding (Pet. Exs., ECF Docket No. 1-5, pp. 11-13).
On January 4, 2012, the Los Angeles Police Department Custodian of Records executed a declaration stating that unidentified "transmitted" documents were true copies of original records described in the subpoena (Pet. Exs., ECF Docket No. 1-5, pp. 1-2). Petitioner does not indicate what records allegedly were produced in response to this subpoena.
On February 26, 2012, Petitioner sent a complaint concerning his counsel to the State Bar of California (Pet. Exs., ECF Docket No. 1-4, pp. 16-21). On March 22, 2012, the State Bar responded, stating that it had advised Petitioner's counsel to contact Petitioner to make arrangements to return the file (Pet. Exs., ECF Docket No. 1-4, pp. 23-24). On April 21, 2012, Petitioner wrote the State Bar stating that Petitioner had not heard from his counsel (Pet. Exs., ECF Docket No. 1-4, p. 26). On May 14, 2012, Petitioner's counsel wrote Petitioner stating that counsel did not have a copy of Petitioner's juvenile file, and asking Petitioner to write to counsel to confirm what Petitioner was requesting (Pet. Exs., ECF Docket No. 1-4, p. 28). On May 28, 2012, Petitioner wrote to counsel requesting a copy of Petitioner's "records' (Pet. Exs., ECF Docket No. 1-4, p. 30). On October 17, 2012, Petitioner wrote to counsel again requesting Petitioner's file (Pet. Exs., ECF Docket No. 1-4, p. 33). On April 16, 2012, Petitioner's counsel wrote to Petitioner enclosing a redacted version of the "initial report" in Petitioner's case (Pet. Exs., ECF Docket No. 1-4, p. 35).
On May 28, 2012, Petitioner wrote to the Foothill Division of the Los Angeles Police Department requesting his records (Pet. Exs., ECF Docket No. 1-4, pp. 37-38).
On December 27, 2012, Petitioner sent a letter to the Superior Court clerk requesting the records produced in response to the subpoena duces tecum (Pet. Exs., ECF Docket No. 1-5, p. 5). On January 24, 2013, the Superior Court denied the request (Pet. Exs., ECF Docket No. 1-5, p. 6).
B. Discussion
As reflected above, the only two investigative efforts Petitioner allegedly undertook prior to the October 1, 2008 expiration of the limitations period occurred in February and April of 2008. After a Superior Court management analyst informed Petitioner on May 13, 2008, that the transcript Petitioner had requested had been destroyed, over five months remained in the limitations period. Thereafter, Petitioner allowed the limitations period to elapse, waiting two more years before allegedly recommencing any effort to obtain his juvenile court records.
Moreover, the alleged lack of a transcript or other records of the juvenile court proceeding did not prevent Petitioner from filing his state court applications or petitions. Petitioner filed these applications/petitions without such transcripts or records. Yet, Petitioner waited over two years from the time he received notice in May of 2008 that the juvenile court transcripts had been destroyed before constructively filing his first state court application for collateral review (the Superior Court motion to set aside the judgment) in August of 2010. Even then, Petitioner waited almost three additional years before filing the present Petition. In short, Petitioner has failed to demonstrate that any asserted inability to obtain the juvenile court transcripts or records prevented Petitioner from filing a timely federal petition.
In these circumstances, Petitioner has not shown that any "extraordinary circumstances" beyond Petitioner's control were the cause of his untimeliness. See Waldron-Ramsey v. Pacholke , 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 558 U.S. 897 (2009). Petitioner is not entitled to equitable tolling.
V. 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." McQuiggen 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 juvenile charge used as a strike (Pet. Mem. I, p. 13). The United States Supreme Court expressly has declined to rule whether Schlup's "actual innocence" exception extends to challenges to noncapital sentences. See Dretke v. Haley , 541 U.S. 386, 393-94 (2004). The Ninth Circuit also has not decided this issue. See Johnson v. Knowles , 541 F.3d 933, 937 n.2 (9th Cir. 2008), cert. denied, 556 U.S. 1211 (2009) (declining to reach issue); Hinkhouse v. Franke, 2013 WL 943535, at *5 (D. Or. Mar. 11, 2013) (noting absence of Ninth Circuit authority); Perry v. Uribe, 2011 WL 6257139, at *10 (C.D. Cal. Nov. 10, 2011), adopted, 2011 WL 6288107 (C.D. Cal. Dec. 15, 2011) (same).
In any event, even assuming arguendo that alleged "actual innocence" of a sentence enhancement can excuse an untimely claim challenging that enhancement, Petitioner has not made the requisite showing under Schlup.
Petitioner argues that the juvenile robbery conviction was for an "unarmed" robbery which purportedly was "neither serious nor violent" and which assertedly did not fall within the definition of juvenile offenses which can qualify as strikes under the Three Strikes Law (see Pet. Mem. II, p. 7). Petitioner contends that the California legislature allegedly lacked the power retroactively to deem the robbery a strike (Pet. Mem. II, pp. 8-9). These allegations of Petitioner's purported legal, not factual, innocence are insufficient to meet the Schlup standard. See Marrero v. Ives , 682 F.3d 1190, (9th Cir. 2012), cert. denied, 133 S.Ct. 1264 (2013) (claim that petitioner was "actually innocent" of being a career offender under federal sentencing guidelines because two of his prior convictions should be considered "related" offenses "is a purely legal claim that has nothing to do with factual innocence"; such a claim is insufficient to qualify for the "escape hatch" for habeas petitions by federal prisoners set forth in 28 U.S.C. section 2255); McKay v. United States , 657 F.3d 1190, 1198 (11th Cir. 2011), cert. denied, 133 S.Ct. 112 (2012) (claim that prisoner was actually innocent of career offender sentence because one of his prior convictions did not qualify as a "crime of violence" was "one of legal, rather than factual, innocence") (citations omitted); United States v. Pettiford , 612 F.3d 270, 284 (4th Cir.), cert. denied, 131 S.Ct. 620 (2010) ("actual innocence applies in the context of habitual offender provisions only where the challenge to eligibility stems from factual innocence of the predicate crimes, and not from the legal classification of the predicate crimes") (citation omitted); United States v. Popa, 2013 WL 5771149, at *2 (D. Minn. Oct. 24, 2013) (rejecting argument of actual innocence asserted as exception to statute of limitations, where prisoner did not claim he was actually innocent of crimes charged and did not dispute the factual findings supporting enhancement); Chin v. Copenhaven, 2013 WL 1907724, at *3-4 (E.D. Cal. May 7, 2013) (rejecting "actual innocence" challenge to career offender status based on allegations that prior convictions were not requisite "violent felony" convictions, where petitioner did not assert he was factually innocent of the underlying crimes); Mohammed v. Banks, 2011 WL 5170449, at *3 (C.D. Cal. Sept. 14, 2011), adopted, 2011 WL 5170443 (C.D. Cal. Oct. 28, 2011) (rejecting "actual innocence" challenge to career offender status based on allegations that sentencing guidelines were ambiguous and prior sentences should have been treated as one sentence, where petitioner did not assert he was factually innocent of the underlying crimes).
The Three Strikes Law defines a strike to include a prior juvenile adjudication where the juvenile was 16 years or older at the time of the offense and the offense is one listed in Section 707(b) of the California Welfare and Institutions Code. See Cal. Penal Code §§ 667(d)(3), 1170.12(b)(3). Robbery is an offense listed in California Welfare and Institutions Code section 707(b). See Cal. Wel. & Inst. Code § 707(b)(3). Prior to March 8, 2000, the effective date of Proposition 21, section 707(b) listed "robbery while armed with a dangerous or deadly weapon."
Petitioner's plea forecloses any claim of alleged factual innocence of the underlying robbery. See Johnson v. Knowles , 541 F.3d at 936-37 (petitioner's concession of guilt fatal to actual innocence claim). Furthermore, Petitioner has not provided any "new reliable" evidence showing his alleged innocence of the underlying robbery. In Petitioner's first habeas corpus petition filed in the Court of Appeal, case number B234651, Petitioner described the robbery as a "purse snatch" incident in which Petitioner and a friend were "hanging out" with some neighborhood kids when one of the juveniles, who had taken a woman's purse, left the park to try to get money out of the woman's bank account (Respondent's Lodgment 1, supporting memorandum, pp. 1-4). The juvenile assertedly left the contents of the purse at the park (id.). In that state habeas petition, Petitioner recounted that he and his friend allegedly took the car keys and then were apprehended by police (id.). Petitioner allegedly pled guilty to the robbery and two counts of burglary arising out of a different incident, assertedly on the understanding that if Petitioner received an "honorable discharge" from the California Youth Authority "he would never have to worry about the robbery charge being used against him" (id., p. 3). In his submissions to this Court, Petitioner does not provide any new evidence of his purported actual innocence of the underlying robbery, much less any new reliable evidence sufficient to satisfy the exacting Schlup standard.
For the foregoing reasons, the "actual innocence" exception to the habeas statute of limitations does not alter the result in the present case.
RECOMMENDATION
For all of 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.