Opinion
CV-22-01866-MTL (ESW)
06-27-2023
Ian Alexander MacDonald, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
HONORABLE EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Arizona state prisoner Ian Alexander MacDonald's (“Petitioner”) Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (the “Petition”) (Doc. 1). Petitioner is represented by counsel. After reviewing the parties' briefing (Docs. 1, 3, 12, 13), the undersigned recommends that the Court dismiss the Petition (Doc. 1) as untimely.
I. BACKGROUND
On August 14, 2014, a jury sitting in the Superior Court of Arizona in and for Maricopa County found Petitioner guilty of Manslaughter, a class 2 dangerous felony. (Doc. 12-5 at 333-34). On October 24, 2014, the trial court imposed an eighteen-year prison sentence. (Doc. 12-6 at 56).
Petitioner filed a direct appeal. On October 4, 2016, the Arizona Court of Appeals affirmed Petitioner's conviction and sentence. (Doc. 12-6 at 70). Petitioner did not seek further review by the Arizona Supreme Court.
On June 3, 2016, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Doc. 12-6 at 76-78). On October 25, 2017, Petitioner filed a PCR Petition through counsel. (Doc. 12-7 at 2-15; Doc. 12-8 at 1-28). The trial court dismissed the PCR Petition, which the Arizona Court of Appeals affirmed. (Doc. 12-9 at 24-26, 43-44). On March 5, 2019, the Arizona Supreme Court denied Petitioner's request for further review. (Doc. 12-12 at 2).
On July 30, 2020, Petitioner filed in the trial court a Motion requesting leave to file an Amended PCR Petition, explaining that Petitioner has discovered a new ineffective assistance of counsel claim. (Id. at 4-8). Petitioner contemporaneously lodged in the trial court the Amended PCR Petition. (Doc. 12-13 at 2-35; Doc. 12-14 at 1-21). In a minute entry filed on April 6, 2021, the trial court denied Petitioner's Motion and deemed the Amended PCR Petition moot. (Doc. 12-15 at 33-34).
On June 15, 2021, Petitioner filed in the Arizona Court of Appeals a Petition for Special Action challenging the trial court's denial of his request to file an Amended PCR Petition. (Doc. 12-15 at 37-50). The Arizona Court of Appeals declined to accept special action jurisdiction. (Id. at 52).
On October 31, 2022, Petitioner filed the Petition for Writ of Habeas Corpus (Doc. 1) and supporting Memorandum (Doc. 3). The Court required Respondents to answer the Petition. (Doc. 7). In their February 10, 2023 Limited Answer (Doc. 12), Respondents argue that the proceeding is untimely and that Ground Four is procedurally defaulted and does not present a cognizable habeas claim. Petitioner filed a Reply (Doc. 13) on March 13, 2023. As discussed below, the undersigned concurs with Respondents that this proceeding is untimely and that Ground Four is not cognizable on habeas review.
II. LEGAL STANDARDS
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a state prisoner must file his or her federal habeas petition within one year of 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 petitioner was prevented from filing by the State action;
C. The date on which the right asserted was initially recognized by the United States Supreme Court, if that right was newly recognized by the Court and made retroactively applicable to cases on collateral review; or
D. The date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1); see also Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007). The one-year limitations period, however, does not necessarily run for 365 consecutive days as it is subject to tolling. Under AEDPA's statutory tolling provision, the limitations period is tolled during the “time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2) (emphasis added); Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006) (limitations period is tolled while the state prisoner is exhausting his or her claims in state court and state post-conviction remedies are pending) (citation omitted).
AEDPA's statute of limitations is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010) (“Now, like all 11 Courts of Appeals that have considered the question, we hold that § 2244(d) is subject to equitable tolling in appropriate cases.”). Yet equitable tolling is applicable only “if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.” Roy, 465 F.3d at 969 (citations omitted); Gibbs v. Legrand, 767 F.3d 879, 888 n.8 (9th Cir. 2014). A petitioner must show (i) that he or she has been pursuing his or her rights diligently and (ii) some extraordinary circumstances stood in his or her way. Pace v. DiGuglielmo, 544 U.S. 408,418 (2005); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009); Roy, 465 F.3d at 969.
III. DISCUSSION
A. Petitioner's Habeas Claims
As detailed in the Screening Order, Petitioner raises the following four grounds for relief:
(1) Violation of Petitioner's 14th Amendment Right to Due Process of Law and to the Effective Assistance of Counsel at Time of Trial, for Counsel (1) failing to present during the trial phase Petitioner's medically/psychologically verified Post-Traumatic Stress Disorder (hereinafter “PTSD”) to explain [Petitioner's] actions both before, during, and after the stabbing incident, and (2) failing to present any medically/psychologically qualified expert witnesses at trial phase to substantiate and provide expert opinion on Defendant's PTSD and the effects it had on his actions before, during, and after the stabbing. (Doc. 1 at 10.)
(2) Violation of Petitioner's 14th Amendment Right to Due Process of Law and to the Effective Assistance of Counsel at Time of Sentencing for failure to present during mitigation/sentencing phase any expert opinion via report or testimony to address how the PTSD [affected Petitioner's] actions and decisions before, during, and after the stabbing incident. (Id. at 17.)
(3) Violation of Petitioner's 14th Amendment Right to Due Process of Law at Time of Trial Court's failure to permit defense counsel to fully present all aspects of mitigation during the sentencing phase and the Court's unwillingness to consider all aspects of mitigation. (Id.)
(4) Violation of Petitioner's 14th Amendment Right to Due Process of Law and for denial of Petitioner's Motion for Leave of Court to Amend his Petition for Post Conviction Relief. (Id. at 18.)(Doc. 7 at 1-2) (internal quotation marks omitted) (alterations in original).
B. Ground Four Does Not Present a Cognizable Habeas Claim
Federal law “unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner ‘only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (quoting 28 U.S.C. § 2254(a)). A petitioner may not “transform a state law issue into a federal one merely by asserting a violation of due process.” Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) (quoting Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996)).
Ground Four alleges that the state court's refusal to grant his Motion requesting leave to file an Amended PCR Petition violated his federal due process rights. (Doc. 1 at 18-25). Petitioner asserts that “it is crystal clear that Petitioner suffered a violation of his federal constitutional 14th Amendment Right to Due Process of Law for denial of Petitioner's Motion for Leave of Court to Amend his Petition for Post Conviction Relief to present a colorable claim not known to Petitioner at the time of his prior (first) post conviction relief petition[.]” (Doc. 13 at 11).
Federal habeas relief is not available to redress errors in state post-conviction proceedings. Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (“[ A] petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings.”); see also Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998) (“[F]ederal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings”); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997) (errors committed during state post-conviction proceedings are not cognizable in a federal habeas action); Villafuerte v. Stewart, 111 F.3d 616, 632 n. 7 (9th Cir. 1997) (claim that petitioner “was denied due process in his state habeas corpus proceedings” was not cognizable on federal habeas review); Cooper v. Neven, 641 F.3d 322, 331 (9th Cir. 2011) (finding not cognizable a claim alleging that state court failed to conduct an in camera inspection of prosecutor's file during PCR hearing); Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) (“Poland further argues that the trial court improperly applied Arizona Rule of Criminal Procedure 32.2 in holding these claims defaulted, since the conditions for inferring waiver under the rule were not satisfied. Federal habeas courts lack jurisdiction, however, to review state court applications of state procedural rules.”); Wingrove v. Ryan, No. CV09-02524-PHX-DGC, 2010 WL 2228524, at *4 n.5 (D. Ariz. Apr. 30, 2010) (the assertion that the state courts deprived a petitioner of their right to due process of law based on a state court's decision in post-conviction proceedings is not a cognizable claim for federal habeas relief); Allen v. Diaz, No. 22-CV-06241-SVW-MAA, 2020 WL 8678163, at *2 n.2 (C.D. Cal. Aug. 11, 2020) (claim alleging that the state courts violated habeas petitioner's right to equal protection during the course of his state habeas proceedings and is subject to summary dismissal as it is not cognizable on federal habeas review); Leon v. Ryan, No. CV 11-0129-TUC-BPV, 2014 WL 289980, at *10 (D. Ariz. Jan. 27, 2014) (claim that state court erred by not granting an evidentiary hearing during post-conviction review proceeding was not cognizable on habeas review); Johnson v. Shinn, No. CV-19-0069-TUC-LCK, 2020 WL 3574591, at *5 (D. Ariz. July 1, 2020) (claim alleging that the state courts unreasonably applied the newly discovered evidence standard in ruling on his PCR claims is not cognizable in a § 2254 habeas proceeding); Emanuel v. Neven, No. 16-CV-01368-GMN, 2020 WL 1451191, at *6 (D. Nev. Mar. 25, 2020) (due process challenge to the state court's consideration of the post-conviction proceedings must be dismissed as non-cognizable on habeas review).
“An attack on the petitioner's state post-conviction proceedings ‘is an attack on a proceeding collateral to the detention and not the detention itself.'” Clark v. Marshall, No. CV 04-481-DDP (MAN), 2009 WL 3270923, at *5 (C.D. Cal. Oct. 8, 2009) (quoting Nicholas v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995)). Because Ground Four presents a challenge to the state court's application of Arizona's procedural rules, the undersigned concurs with Respondents that Ground Four is not a cognizable habeas claim. (Doc. 12 at 18). It is recommended that the Court dismiss Ground Four.
The undersigned further finds that Respondents correctly assert that Ground Four may be alternatively dismissed as procedurally defaulted without excuse because Petitioner failed to fairly present the claim to the state courts. (Doc. 12 at 15-18).
C. This Proceeding is Untimely
To analyze the timeliness of this proceeding, it must first be determined which of the triggering events specified in 28 U.S.C. § 2244(d)(1)(A)-(D) applies for purposes of calculating the start date of the one-year limitations period. Respondents assert that the triggering event for all of Petitioner's grounds for relief is the date upon which Petitioner's conviction became final pursuant to 28 U.S.C. § 2244(d)(1)(A). (Doc. 12 at 7).
In his Reply, Petitioner asserts that if the trial court granted the Motion for Leave to file an Amended PCR Petition, then following completion of that PCR proceeding, “there would be no question of timeliness of the federal habeas petition.” (Doc. 13 at 12). However, more than one triggering event may apply to a federal habeas petition. The appropriate triggering date of the limitations period is determined on a claim-by-claim basis. Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012) (“AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis.”). The claim-by-claim approach avoids the result of “permitting a late-accruing federal habeas claim to open the door for the assertion of other claims that had become time-barred years earlier.” Fielder v. Varner, 379 F.3d 113, 120 (3d Cir. 2004).
Section 2244(d)(1)(D) applies “only if vital facts could not have been known by the date the appellate process ended.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (internal quotation marks and citations omitted). The date a prisoner recognizes the legal significance of facts is irrelevant for purposes of Section 2244(d)(1)(D). See Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001) (“Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance.”).
“Due diligence does not require ‘the maximum feasible diligence,' but it does require reasonable diligence in the circumstances.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (citation omitted). Thus, “[a]lthough section 2244(d)(1)(D)'s due diligence requirement is an objective standard, a court also considers the petitioner's particular circumstances.” Id. The requirement of due diligence generally implies an affirmative duty to investigate after some triggering event has raised or should have raised the suspicion that further investigation might prove fruitful. See, e.g., Singh v. Gonzales, 491 F.3d 1090, 1096 (9th Cir. 2007) (habeas petitioner claiming ineffective assistance of counsel in immigration proceeding did not exercise due diligence, and thus did not qualify for equitable tolling, because he failed “to definitively learn of [a] fraud after he became suspicious of the fraud”).
Here, Ground Four challenges the state court's denial of his Motion for Leave to file an Amended PCR Petition. Yet the Amended PCR Petition does not present any underlying facts that could not have been known through the exercise of due diligence at the time Petitioner filed his initial PCR Petition. Moreover, Ground Four is not a cognizable habeas claim. The undersigned finds that the triggering event set forth in Section 2244(d)(1)(D) does not apply to provide a commencement date of the limitations period that is later than the date Petitioner's convictions became final. The undersigned agrees with Respondents that the triggering event set forth in Section 2244(d)(1)(A) (i.e. the date upon which Petitioner's convictions and sentences became final) applies to all grounds for relief in the Petition. (Doc. 12 at 7).
The Arizona Court of Appeals affirmed Petitioner's conviction and sentence on October 4, 2016. (Doc. 12-6 at 70). Petitioner had thirty days from October 4, 2016 to petition the Arizona Supreme Court for further review. Ariz. R. Crim. P. 31.19(a). Consequently, Petitioner's convictions and sentences became final on November 3, 2016. The following section explains that Petitioner is entitled to statutory tolling during the pendency of his PCR proceeding initiated in 2016, but Petitioner is not entitled to equitable tolling.
1. Statutory Tolling
Statutory tolling does not apply to collateral review petitions that are not “properly filed.” 28 U.S.C. § 2244(d)(2). A collateral review petition is “properly filed” when its delivery and acceptance comply with state rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000); Orpiada v. McDaniel, 750 F.3d 1086, 1089 (9th Cir. 2014) (court looked to Nevada state filing requirements in determining whether habeas petitioner's PCR petition was a “properly filed” application that is eligible for tolling). This includes compliance with filing deadlines. Hence, an untimely state collateral review petition is not “properly filed.” Pace, 544 U.S. at 417 (holding that “time limits, no matter their form, are ‘filing' conditions,” and that a state PCR petition is therefore not “properly filed” if it was rejected by the state court as untimely).
Here, on May 24, 2016, prior to the conclusion of Petitioner's direct appeal, Petitioner filed a PCR Notice. (Doc. 12-6 at 76-78). The limitations period therefore was immediately tolled when Petitioner's conviction became final on November 3, 2016. The PCR proceeding concluded on March 5, 2019 when the Arizona Supreme Court denied Petitioner's request for further review. (Doc. 12-12 at 2). The undersigned finds that the limitations period commenced on March 6, 2019, and unless additional statutory tolling applies, the limitations period expired on March 5, 2020. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (“Excluding the day on which Patterson's petition was denied by the Supreme Court, as required by Rule 6(a)'s ‘anniversary method,' the one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998 ....”).
Once the statute of limitations has run, subsequent collateral review petitions do not “restart” the clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Because the limitations period had expired in March 2020, Respondents correctly assert that Petitioner's July 30, 2020 Motion requesting leave to file an Amended PCR Petition did not have statutory tolling effect. (Doc. 12 at 7). This proceeding is untimely unless equitable tolling applies.
Moreover, Petitioner's Petition for Special Action filed in the Arizona Court of Appeals would not have had any statutory tolling effect even if it was filed prior to the expiration of the limitations period. In Arizona, a petition for special action is the equivalent of a petition for writ of mandate. Ariz. R.P. Special Actions 1, 17B Ariz. Rev. Stat. “Special action jurisdiction is appropriate when there is no equally plain, speedy, and adequate remedy by way of appeal.” State ex rel. Pennartz v. Olcavage, 30 P.3d 649, 652 (Ariz.Ct.App. 2001) (citing Ariz. R.P. Spec. Act. 1(a)). “Special action jurisdiction is more likely to be accepted in cases involving a matter of first impression, statewide significance, or pure questions of law.” Id. In the context of federal habeas proceedings, “[b]ecause a petition for special action is not a request for collateral review, it does not toll AEDPA's statute of limitations.” Proper v. Phoenix City Prosecutor's Off., No. CV-18-03026-PHX-SRB, 2020 WL 3197343, at *3 (D. Ariz. June 15, 2020) (citing Borrud v. Ryan, No. CV-15-08043-PHX-SPL, 2017 WL 1057965, at *4 (D. Ariz. Mar. 21, 2017)); Hardiman v. Galaza, 58 Fed.Appx. 708, 710 (9th Cir. 2003) (stating that petitions for writ of mandate do not toll limitations period because they are not applications for State PCR or other collateral review with respect to pertinent judgment or claims under § 2244(d)(2)); see also Meadows v. Jacquez, 242 Fed.Appx. 453, 455 (9th Cir. 2007) (stating that mandamus petitions are not petitions for collateral review within the meaning of 28 U.S.C. § 2244(d)(2)).
2. Equitable Tolling
As mentioned, to receive equitable tolling, a petitioner bears the burden of showing (i) that he has been pursuing his rights diligently and (ii) that some extraordinary circumstance stood in his way. Pace, 544 U.S. at 418. A petitioner's miscalculation of when the limitations period expired does not constitute an “extraordinary circumstance” warranting equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); see also Alexander v. Schriro, 312 Fed.Appx. 972, 976 (9th Cir. 2009) (“Ultimately [the petitioner] made an incorrect interpretation of the statute and miscalculated the limitations period. This does not amount to an ‘extraordinary circumstance' warranting equitable tolling.”).
The Ninth Circuit has “made clear . . . that equitable tolling is ‘unavailable in most cases[.]'” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999)). Equitable tolling is “appropriate only ‘if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.'” Id. (quoting Beeler, 128 F.3d at 1288) (emphasis in original). Indeed, “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.” United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000).
In arguing that he is entitled to equitable tolling, Petitioner argues that he “was deliberately misled by his trial counsel and denied a copy of the critical toxicology report; the defendant acted reasonably and responsibly once the facts and claim became known to him; and the state court proceedings and federal court proceedings were filed in a diligent manner thereafter.” (Doc. 13 at 14). None of Petitioner's habeas claims present the ineffective assistance of counsel that Petitioner sought to raise in an Amended PCR Petition. Ground Four only challenges the state court's denial of Petitioner's Motion for Leave to file the Amended PCR Petition. Petitioner requests that the Court “grant habeas corpus relief on Ground Four in the form of an order granting post conviction counsel leave to amend the previously filed post conviction relief petition to assert a colorable claim not known to Petitioner at the time of filing the previous post conviction relief action ....” (Doc. 1 at 28).
Grounds One, Two, and Three of the Petition present the claims contained in Petitioner's initial PCR Petition. (Doc. 12-7 at 3). Respondents correctly assert that Petitioner's delay of nearly three years and eight months in filing a habeas petition following the conclusion of Petitioner's PCR proceeding in 2019 demonstrates a lack of diligence. (Doc. 12 at 10). To reiterate, the claim-by-claim approach to applying AEDPA's one-year limitations period avoids the result of “permitting a late-accruing federal habeas claim to open the door for the assertion of other claims that had become time-barred years earlier.” Fielder, 379 F.3d at 120. As discussed in Section III(B) above, Ground Four is not cognizable in this proceeding and therefore it is not necessary to conduct an equitable tolling analysis as to that claim.
There is no indication in the record that the circumstances of Petitioner's incarceration made it “impossible” for Petitioner to timely file a federal habeas petition. Petitioner has failed to show the existence of “extraordinary circumstances” that were the proximate cause of the untimely filing of this proceeding. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (for equitable tolling to apply, a “prisoner must show that the ‘extraordinary circumstances' were the cause of his untimeliness”); Bryant v. Arizona Att.Gen., 499 F.3d 1056, 1061 (9th Cir. 2007) (“A petitioner must show that his untimeliness was caused by an external impediment and not by his own lack of diligence.”). Equitable tolling therefore is unavailable. Accordingly, the Petition (Doc. 1) is untimely.
D. The Actual Innocence/Schlup Gateway Does Not Apply to Excuse the Untimeliness of this Proceeding
In McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-34 (2013), the Supreme Court announced an equitable exception to AEDPA's statute of limitations. The Court held that the “actual innocence gateway” to federal habeas review that was applied to procedural bars in Schlup v. Delo, 513 U.S. 298, 327 (1995) and House v. Bell, 547 U.S. 518 (2006) extends to petitions that are time-barred under AEDPA. The “actual innocence gateway” is also referred to as the “Schlup gateway” or the “miscarriage of justice exception.”
Under Schlup, a petitioner seeking federal habeas review under the miscarriage of justice exception must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S. at 324; see also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 133 S.Ct. at 1927 (explaining the significance of an “[u]nexplained delay in presenting new evidence”). A petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 133 S.Ct. at 1935 (quoting Schlup, 513 U.S. at 327). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thomas, 523 U.S. 538, 559 (1998)).
To the extent Petitioner may assert the actual innocence/Schlup gateway, Petitioner has not presented any new reliable evidence establishing that he is factually innocent of his convictions. Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (“In order to present otherwise time-barred claims to a federal habeas court under Schlup, a petitioner must produce sufficient proof of his actual innocence to bring him “within the ‘narrow class of cases . . . implicating a fundamental miscarriage of justice.'”) (citations omitted); Shumway, 223 F.3d at 990 (“[A] claim of actual innocence must be based on reliable evidence not presented at trial.”); Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013) (“[W]e have denied access to the Schlup gateway where a petitioner's evidence of innocence was merely cumulative or speculative or was insufficient to overcome otherwise convincing proof of guilt.”).
The undersigned recommends that the Court find that Petitioner cannot pass through the actual innocence/Schlup gateway to excuse the untimeliness of this federal habeas proceeding. See Smith v. Hall, 466 Fed.Appx. 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming forward with ‘new reliable evidence'”); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new reliable evidence . . . that was not presented at trial.'”). It is recommended that the Court dismiss the Petition (Doc. 1) with prejudice.
IV. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Petition (Doc. 1) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1);Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.