Gregory Hermanski v. Isidro Baca

Ninth Circuit

Gregory Hermanski v. Isidro Baca

649 F. App'x 386

CourtCourt of Appeals for the Ninth Circuit

DecidedApril 20, 2016

Docket14-15485

StatusUnpublished

This text of 649 F. App'x 386 (Gregory Hermanski v. Isidro Baca) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gregory Hermanski v. Isidro Baca, 649 F. App'x 386 (9th Cir. 2016).

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Opinion

MEMORANDUM **

Gregory Scott Hermanski appeals the district court’s denial of his federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. 1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Her-manski argues that the district court erred by not considering the merits of his untimely petition because he made a sufficient showing of actual innocence.

A petitioner is entitled to merits consideration of an untimely habeas petition if he can “show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 827, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). A jury convicted Hermanski of armed robbery and armed burglary. Before the district court, Hermanski offered an affidavit from a fellow laborer who purported to be with Hermanski most of the day of the robbery, but also admitted that he left Hermanski briefly around the time of the robbery. This alibi witness stated that he did “not believe that [Hermanski] could have robbed the motel during the time [he] was gone,” but did not provide an alibi for Hermanski. The times used by the witnesses were approximates, cash and a knife found on Hermanski matched those from the robbery, and the motel clerk identified Hermanski as the assailant shortly after the robbery took place. Her-manski was not entitled to merits consideration of his untimely petition, even in light of this new evidence.

Hermanski also argues that the district court should have ordered the full trial court record and held an evidentiary hearing to'determine the merits of his claims. But our case law only requires such robust inquiry where the record shows that “circumstances consistent with petitioner’s petition” would entitle him to equitable tolling. See Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir.2003). No such circumstances exist here.

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1

. The parties are familiar with the facts, so we will not recount them here.

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MEMORANDUM **

Gregory Scott Hermanski appeals the district court’s denial of his federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. 1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Her-manski argues that the district court erred by not considering the merits of his untimely petition because he made a sufficient showing of actual innocence.

A petitioner is entitled to merits consideration of an untimely habeas petition if he can “show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 827, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). A jury convicted Hermanski of armed robbery and armed burglary. Before the district court, Hermanski offered an affidavit from a fellow laborer who purported to be with Hermanski most of the day of the robbery, but also admitted that he left Hermanski briefly around the time of the robbery. This alibi witness stated that he did “not believe that [Hermanski] could have robbed the motel during the time [he] was gone,” but did not provide an alibi for Hermanski. The times used by the witnesses were approximates, cash and a knife found on Hermanski matched those from the robbery, and the motel clerk identified Hermanski as the assailant shortly after the robbery took place. Her-manski was not entitled to merits consideration of his untimely petition, even in light of this new evidence.

Hermanski also argues that the district court should have ordered the full trial court record and held an evidentiary hearing to'determine the merits of his claims. But our case law only requires such robust inquiry where the record shows that “circumstances consistent with petitioner’s petition” would entitle him to equitable tolling. See Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir.2003). No such circumstances exist here.

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1

. The parties are familiar with the facts, so we will not recount them here.

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649 F. App'x 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gregory-hermanski-v-isidro-baca-ca9-2016.

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