Clifford Chaun Loyer v. Patrick Covello

Opinion

1 . 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 | CLIFFORD CHAUN LOYER, Case No. 8:21-cv-00233-PSG-JC 12 —ReResisb ) Petitioner, 13 ORDER ACCEPTING FINDINGS, V. CONCLUSIONS, AND 14 RECOMMENDATIONS OF UNITED STATES MAGISTRATE 15 | PATRICK COVELLO, JUDGE 16 Respondent. 17 18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of 20 || Habeas Corpus by a Person in State Custody and accompanying documents 21 (“Petition”), the parties’ submissions in connection with respondents’ Motion to 22 | Dismiss the Petition, and all of the records herein, including the 23 | October 26, 2021 Report and Recommendation of United States Magistrate Judge 24 (“Report and Recommendation”) and petitioner’s objections to the Report and 25 || Recommendation (“Objections”). The Court has further made a de novo 26 | determination of those portions of the Report and Recommendation to which 27 objection is made. 28 ///

1 The Magistrate Judge recommends that the Motion to Dismiss be granted 2 || and the Petition and this action be dismissed because petitioner’s claims are 3 || untimely by more than a year. The Magistrate Judge found that petitioner failed to 4 || demonstrate any grounds for tolling, and he did not satisfy the “actual innocence” 5 || exception to AEDPA’s statute of limitations because he failed to identify any new, 6 || reliable evidence that would cast doubt on his conviction. See Schlup v. Delo, 7 | 513 U.S. 298, 324 (1995) (to make a credible claim of actual innocence, a 8 || petitioner must “support his allegations of constitutional error with new reliable 9 || evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness 10 || accounts, or critical physical evidence — that was not presented at trial”). Instead, 11 | petitioner’s claim of actual innocence rests merely on his unsubstantiated 12 || contentions that the arresting officer and the eyewitness had lied in their trial 13 || testimony, and that he would have been exonerated if his wife had testified or if 14 || certain hypothetical surveillance video footage had been obtained. (See Petition at 15 | 4, 7; Opposition Memo at 2; Lodged Doc. 22 at 2-6). The Magistrate Judge also 16 || found that petitioner failed to justify his delay in raising this claim, given that it 17 || rests merely on facts he would have known before trial. 18 In the Objections, petitioner continues to assert his claim of actual 19 || innocence without any new, reliable evidence. Instead, he submits his own 20 || detailed account of the incident for which he was convicted (Objections at 2-4), 21 || and he quotes from what appear to be portions of the trial transcript that he 22 || disputes (Objections at 4-7). Petitioner also explains that he has been attempting 23 || to track down his wife for several years to obtain an affidavit from her, without 24 || success. (Objections at 8-9). He states, however, that he recently heard that she 25 || had been located at “the railroad tracks” in Santa Ana, so he asks the Court to give 26 || him an additional thirty days for this purpose. (Objections at 8). 27 As the Magistrate Judge found, petitioner’s belated, unsubstantiated 28 || contentions are not enough to qualify for the “actual innocence” exception under

1 || Shlup. He has failed to identify any error in the Magistrate Judge’s Report and 2 || Recommendation. Furthermore, the Court is not persuaded that additional time 3 || will enable him to produce any new, reliable evidence in this case, more than three 4 || years after his conviction became final. See Schlup v. Delo, 513 U.S. at 332 5 || (“[T]he court may consider how the timing of the submission and the likely 6 || credibility of the affiants bear on the probable reliability of that evidence.”). 7 Accordingly, the Court overrules the Objections, and agrees with, approves, 8 || accepts and adopts the Report and Recommendation. 9 IT IS HEREBY ORDERED that (1) the Motion to Dismiss (Docket No. 7) 10 || is granted; (2) the Petition and this action are dismissed because petitioner’s 11 || claims are barred by the statute of limitations, and on the alternative grounds 12 || reflected in footnote 6 of the Report and Recommendation; and (3) Judgment shall 13 || be entered accordingly. 14 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and 15 || the Judgment herein on petitioner and on respondent’s counsel. 16 IT IS SO ORDERED. 17 18 || DATED: 4/30/27 19 20 fe Yee 21 HONORABLE PHILIP S. GUTIERREZ CHIEF UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28