(HC)Castaneda v. Sherman

• Court: District Court, E.D. California
• Decided: August 25, 2022
• Docket: 1:20-cv-00377
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISAAC SCOTT CASTANEDA, Case No. 1:20-cv-00377-JLT-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS PETITION AS UNTIMELY1 14 THERESA CISNEROS, FOURTEEN-DAY OBJECTION PERIOD 15 Respondent. (Doc. No. 24) 16 17 18 Petitioner Isaac Scott Castaneda (“Petitioner” or “Castaneda”), a state prisoner, initiated 19 this action by filing a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 20 1, “Petition”). In response, Respondent filed a Motion to Dismiss. (Doc. No. 24). Petitioner 21 filed an opposition to the Motion to Dismiss and supplemental briefing after being directed by the 22 Court. (Doc. Nos. 18, 27, 29). Petitioner did not file a response to Respondent’s Motion to 23 Dismiss or the supplemental briefing, and the time for doing so has expired. For the reasons set 24 forth more fully below, the undersigned recommends granting Respondent’s Motion to Dismiss. 25 I. BACKGROUND 26 Petitioner is serving a state prison sentence for his conviction of, inter alia, attempted 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 murder and possession of a firearm by a felon entered by the Kings County Superior Court on 2 February 13, 2014.2 (Doc. No. 1 at 1). Petitioner’s sentence was enhanced by findings of gang 3 membership and gun possession. (Id.). Petitioner was sentenced to forty-five years to life for the 4 attempted murder conviction, twenty-five years to life on the sentencing enhancements, and a 5 stayed six-year term on the possession of a firearm conviction. (Doc. No. 24 at 1-2). 6 Petitioner appealed the conviction to the California Court of Appeal, Fifth Appellate 7 District, which was affirmed on February 4, 2016. (Doc. No. 26-1). The California Supreme 8 Court denied review on April 20, 2016. (Doc. No. 26-3). Petitioner then filed six post-conviction 9 collateral challenges in the state courts, all petitions for writ of habeas corpus, as follows:3 10 1. Kings County Superior Court 11 Filed: February 13, 2017 12 Denied: April 3, 2017 13 2. California Court of Appeal, Fifth Appellate District 14 Filed: April 25, 2017 15 Denied: June 9, 2017 16 3. Kings County Superior Court 17 Filed: October 26, 2017 18 Denied: December 12, 2017 19 4. California Court of Appeal, Fifth Appellate District 20 Filed: February 21, 2018 21 Denied: April 27, 2018 22 5. California Supreme Court 23 Filed: December 12, 2018 24

25 2 Although Petitioner did not provide his date of conviction in his petition, the Court takes judicial notice of Petitioner’s date of conviction on the Kings County Superior Court online case database under Federal 26 Rule of Evidence 201. See https://cakingsportal.tylerhost.net/CAKINGSPROD/Home/Dashboard/29, last accessed August 15, 2022. 27 3 Unless otherwise indicated, pursuant to the mailbox rule, the Court deems the various petitions filed on the dates they were signed and presumably handed to the prison authorities for mailing. Houston v. Lack, 28 487 U.S. 266, 276 (1988); Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 2010). 1 Denied: May 1, 2019 2 6. California Supreme Court 3 Filed: March 15, 20204 4 Denied: July 22, 2020 5 (Doc. Nos. 26-4 – 26-15). On March 2, 2020, Petitioner filed the instant Petition. Petitioner 6 makes the following claims for relief: (1) newly discovered evidence proves he is innocent of his 7 crimes of conviction; (2) the state court erred when it declined to hold a hearing on the newly 8 discovered evidence; and (3) prosecutorial and trial court errors violated his constitutional rights. 9 (Doc. No. 1 at 4-9). 10 Respondent contends the Petition should be dismissed because it is untimely and the 11 actual innocence exception to the statute of limitations should not apply. (See generally Doc. 12 Nos. 24, 29). Petitioner did not file any response to the Motion to Dismiss or the supplemental 13 briefing. However, in his earlier briefing Petitioner argues that he should be entitled to gap 14 tolling for the periods during which he was seeking state habeas review; equitable tolling due to 15 the ineffectiveness of his trial and appellate counsel; and, in the alternative, equitable tolling of 16 the statute of limitations under the actual innocence gateway described in Schlup v. Delo, 513 17 U.S. 298 (1995) and McQuiggin v. Perkins, 569 U.S. 383 (2013). (See Doc. Nos. 10, 19). 18 II. APPLICABLE LAW AND ANALYSIS 19 Under Rule 4, if a petition is not dismissed at screening, the judge “must order the 20 respondent to file an answer, motion, or other response” to the petition. R. Governing 2254 Cases 21 4. The Advisory Committee Notes to Rule 4 state that “the judge may want to authorize the 22 respondent to make a motion to dismiss based upon information furnished by respondent.” A 23 motion to dismiss a petition for writ of habeas corpus is construed as a request for the court to 24 dismiss under Rule 4 of the Rules Governing Section 2254 Cases. O’Bremski v. Maass, 915 F.2d 25 4 Respondent points out Petitioner signed the sixth state petition on March 15, 2020, which is also the date 26 on the proof of service. (See Doc. No. 26-14). However, the file-stamp date on the state petition is May 8, 2020. (Id. at 1). “Although it is not probable that the sixth state petition took two months to process, 27 Respondent, without conceding the issue and while recognizing the possibility that COVID-19 may have impacted institutional procedures, has listed the filing date of the sixth state petition as March 15, 2020, 28 the earlier of the two dates.” (Doc. No. 24 at 3 n.4). 1 418, 420 (9th Cir. 1990). Under Rule 4, a district court must dismiss a habeas petition if it 2 “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 3 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 4 A. Petition Not Timely Filed Under AEDPA’s Statute of Limitations 5 Title 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act 6 of 1996, sets a one-year period of limitations to the filing of a habeas petition by a person in state 7 custody. This limitation period runs from the latest of: 8 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such 9 review; 10 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of 11 the United States is removed, if the applicant was prevented from filing by such State action; 12 (C) the date on which the constitutional right asserted was initially 13 recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable 14 to cases on collateral review; or 15 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due 16 diligence. 17 28 U.S.C. § 2244(d)(1). For most habeas petitioners, the one-year clock starts to run on “the date 18 on which the judgment became final by the conclusion of direct review or the expiration of the 19 time for seeking such review.” 42 U.S.C. § 2244(d)(1)(A). In this case, the California Supreme 20 Court denied review on April 20, 2016. Thus, direct review concluded on July 19, 2016, when 21 the ninety (90) day period for seeking review in the United States Supreme Court expired. 22 Barefoot v. Estelle, 463 U.S. 880, 887 (1983); U.S. Sup. Ct. R. 13. For the purposes of § 23 2244(d)(1)(A), AEDPA’s one-year statute of limitations began running the next day on July 20, 24 2016. (Doc. No. 24 at 3). Petitioner had until July 19, 2017 to file his federal habeas petition, 25 absent statutory or equitable tolling. See Patterson v. Stewart, 251 F.3d 1243, 1246-47 (9th Cir. 26 2001) (adopting anniversary method to calculate one-year statutory period). Petitioner filed his 27 federal petition on March 2, 2020. (Doc. No. 1). Thus, absent any applicable tolling, the instant 28 petition is barred by the statute of limitations. 1 1. Commencement of Limitations Period 2 Under § 2244(d)(1)(D), the limitations period shall run from “the date on which the 3 factual predicate of the claim or claims presented could have been discovered through the 4 exercise of due diligence.” However, 5 Section 2244(d)(1)(D) provides a petitioner with a later accrual date than section 2244(d)(1)(A) only ‘if vital facts could not have been 6 known’ ” by the date the appellate process ended. Schlueter, 384 F.3d at 74 (quoting Owens v. Boyd, 235 F.3d 356, 359 (7th 7 Cir.2000)). The “due diligence” clock starts ticking when a person knows or through diligence could discover the vital facts, regardless 8 of when their legal significance is actually discovered. See Hasan, 254 F.3d at 1154 n. 3;see also Redd v. McGrath, 343 F.3d 1077, 9 1082 (9th Cir.2003). 10 Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (internal citation and quotation marks 11 omitted). In earlier briefing, Petitioner argued the affidavits submitted in support of his actual 12 innocence claim, discussed in detail below, were not “discovered until the AEDPA 1-year time 13 limit had already begun to run.” (Doc. No. 13). Petitioner also argued in separate briefing that he 14 is entitled to an unidentified later “trigger date” under § 2244(d)(1)(D) because he continued to 15 exercise due diligence despite the alleged ineffectiveness of trial and appellate counsel. (See 16 generally Doc. No. 19). 17 Petitioner’s argument that he is entitled to a later commencement date of the limitations 18 period and vague and conclusory. Furthermore, Petitioner fails to specifically identify a date the 19 statute of limitations period should run from pursuant to § 2244(d)(1)(D), i.e. the date when he 20 “discovered” the purported new evidence in the form of affidavits supporting his actual innocence 21 claim, or the date he “discovered” ineffectiveness of trial and appellate counsel. Moreover, this 22 evidence was readily discoverable at any time during the trial or immediately thereafter. As 23 discussed below with respect to the affidavits regarding the victim’s alleged motivation to falsely 24 identify him as the shooter, Petitioner attempted during his trial to impeach the credibility of the 25 victim by making the same argument – that the victim named Petitioner as the shooter due to a 26 longstanding “grudge” against Petitioner for sleeping with the mother of his child. And 27 Petitioner’s own summary of his “due diligence” regarding his claims of ineffective assistance of 28 counsel acknowledges that he was aware of “vital facts” by the date the appellate process ended. 1 See Ford, 683 F.3d at 1235. 2 Supra, under § 2244(d)(1)(D), the statute of limitations runs from the time the facts were 3 known or could have been discovered, not from the time Petitioner discovered, or endeavored to 4 discover through due diligence, a possible legal significance. Petitioner fails to show he 5 exercised the requisite due diligence to justify a delayed accrual date for his claims of actual 6 innocence and ineffectiveness of counsel. Thus, Petitioner is not entitled to a later trigger of the 7 AEDPA statute of limitations pursuant to § 2244(d)(1)(D). Moreover, even if the Court 8 recalculates the statute of limitations from the later accrual date of Petitioner’s habeas petition 9 filed on October 26, 2017, wherein he asserts the actual innocence claim in a habeas petition to 10 the state superior court based on the 2017 “newly discovered” affidavits, the Petition would still 11 be untimely, as discussed in detail below. 12 2. Statutory Tolling 13 The federal statute of limitations tolls for the “time during which a properly filed 14 application for State post-conviction or other collateral review with respect to the pertinent 15 judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). An application for post-conviction or 16 other collateral review is “pending” in state court “as long as the ordinary state collateral review 17 process is ‘in continuance’—i.e., ‘until the completion of' that process.’” Carey v. Saffold, 536 18 U.S. 214, 219 (2002) (citations omitted). “California’s collateral review system differs from that 19 of other States in that it does not require, technically speaking, appellate review of a lower court 20 determination.” Id. at 221. Instead, petitioners are required to file an original habeas petition and 21 a subsequent appeal in each level of court (superior, appellate, and supreme) within a 22 “reasonable” period. Id. at 221-22; Robinson v. Lewis, 9 Cal. 5th 883, 897 (2020) (“There are no 23 specific time limits for either filing the first [habeas] petition or filing subsequent petitions in a 24 higher court. Instead, California courts employ a reasonableness standard. The claim must 25 generally be presented without substantial delay.”). A petition is considered no longer “pending,” 26 and the petitioner is barred from AEDPA statutory tolling, if an unreasonable amount of time 27 elapsed between the filing of state court habeas petitions. Saffold, 536 U.S. at 221. 28 To determine whether a habeas claim was filed within a reasonable amount of time, 1 California courts consider three factors. Robinson, 9 Cal. 5th at 897. First, “a claim must be 2 presented without substantial delay.” Id. (emphasis in original). ‘“Substantial delay is measured 3 from the time the petitioner or his or her counsel knew, or reasonably should have known, of the 4 information offered in support of the claim and the legal basis for the claim.”’ Id. (quoting In re 5 Robbins, 18 Cal. 4th 770, 780 (1998)). Second, if a petition was filed with substantial delay, a 6 petition may yet be considered on the merits if the “petitioner can demonstrate good cause for the 7 delay.” Id. (emphasis in original). Third, a petition filed without good cause for substantial delay 8 will be considered if it falls under one of four narrow exceptions. Id. Only three of the four 9 exceptions are relevant to noncapital cases: (1) the “‘error of constitutional magnitude led to a 10 trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have 11 convicted the petitioner;’” (2) “‘the petitioner is actually innocent of the crime or crimes of which 12 he or she was convicted;’” and (3) “‘the petitioner was convicted or sentenced under an invalid 13 statute.’” In re Reno, 55 Cal. 4th 428, 460 (2012) (quoting Robbins, 18 Cal. 4th at 780). The 14 California Supreme Court has opined that a six-month gap delay would normally be “unduly 15 generous,” but adopted “a time period of 120 days as the safe harbor for gap delay” for the filing 16 of habeas petitions between state court levels. Robinson, 9 Cal. 5th at 901. “A new petition filed 17 in a higher court within 120 days of the lower court’s denial will never be considered untimely 18 due to gap delay.” Id. 19 For petitions filed in a “reasonable time,” a petitioner may count as “pending” the “days 20 between (1) the time the lower state court reached an adverse decision, and (2) the day he filed a 21 petition in the higher state court.” Evans v. Chaviz, 546 U.S. 189, 193 (2006). This Court “must 22 itself examine the delay in each case and determine what the state courts would have held in 23 respect to timeliness.” Id. at 198. 24 Here, AEDPA’s statute of limitations began running on July 20, 2016, at the conclusion of 25 direct review per § 2244(d)(1)(A), and continued to run until Petitioner filed his first state habeas 26 petition on February 13, 2017. (See Doc. No. 26-4). “AEDPA’s statute of limitations is not 27 tolled from the time a final decision is issued on direct state appeal and the time the first state 28 collateral challenge is filed because there is no case ‘pending’ during that interval.” Nino v. 1 Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Accordingly, 208 days elapsed on the AEDPA 2 clock between the conclusion of direct review and the filing of Petitioner’s first state habeas 3 petition. As noted by Respondent, the limitations period was then tolled from February 13, 2017, 4 the date Petitioner filed his first state habeas petition, through June 9, 2017, the date the state 5 appellate court denied Petitioner’s habeas petition. Id. at 1006-07 (The limitations period 6 “remains tolled during the intervals between the state court’s disposition of a state habeas petition 7 and the filing of the petition at the next state appellate level.”); Delhomme v. Ramirez, 340 F.3d 8 817, 821 n.3 (9th Cir. 2003) (“[T]he crucial issue for tolling purposes is whether the petitioner has 9 timely proceeded to the next appellate level, since the one year filing period is tolled to allow the 10 opportunity to complete one full round of review.”). Thus, the AEDPA clock commenced 11 running again on Monday, June 12, 2017.5 12 As noted by Respondent, after the state appellate court denied Petitioner’s state habeas 13 petition, Petitioner “proceeded downward” by filing a petition in state superior court, that raised a 14 different claim than those raised in the previous state petitions. (Doc. No. 24 at 6). Statutory 15 tolling is not available for intervals between separate rounds of state post-conviction proceedings. 16 See Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003) (application for post-conviction relief 17 is pending during the “intervals between a lower court decision and a filing of a new petition in a 18 higher court”); Welch v. Newland, 350 F.3d 1079, 1083 (9th Cir. 2003) (a petitioner ‘is not 19 entitled to statutory tolling during the period of inaction between his separate applications for 20 relief in the California state courts.”); Stockton v. Barnes, 2014 WL 5325422, at *6 (E.D. Cal. 21 Oct. 17, 2014) (“Because petitioner did not proceed up the ladder to the next higher court, such 22 filing does not toll the limitations period.”). Therefore, the AEDPA clock continued to run for 23 another 136 days—from June 12, 2017 until the filing of Petitioner’s filed his third state petition 24 on October 26, 2017. Thus, including the 208 days that had elapsed before Petitioner filed his 25 first state habeas petition, a total of 344 days ran on the limitation period before Petitioner filed 26 his third state habeas petition. 27 5 Because June 10, 2017 was a Saturday, the Court restarts AEDPA’s clock on the next business day, 28 Monday, June 12, 2010. 1 AEDPA’s limitations period was then tolled from October 26, 2017, the date Petitioner 2 filed his third state habeas petition, through April 27, 2018, the date the state appellate court 3 denied Petitioner’s fourth habeas petition, because Petitioner proceeded in a diligent manner and 4 filed his fourth habeas petition in the appellate court 71 days after the denial of his third petition 5 in superior court. See Nino, 183 F.3d at 1006-07. However, Petitioner did not file his fifth state 6 court petition until December 12, 2018, more than seven months after his fourth petition was 7 denied on Friday, April 27, 2018. This delay is substantially longer than the 120-day “safe 8 harbor” gap delay for the filing of habeas petitions between state court levels. See Robinson, 9 9 Cal. 5th at 901. Thus, because Petitioner failed to present his fifth petition to the California 10 Supreme Court without substantial delay and offered no argument as to good cause for this delay, 11 it was not presented within a reasonable amount of time and the AEDPA clock continued to run 12 as of Monday, April 30, 2018 and continued to run for 21 days until it expired on May 21, 2018.6 13 Petitioner did not file the Petition until March 2, 2020, exceeding the one year period of 14 limitations by over twenty-one months. 15 In earlier briefing, Petitioner generally argues that he has “met the requirement for gap 16 tolling” because “newly discovered evidence” was filed in the superior court within the 17 “reasonable time limit.” (Doc. No. 10 at 2). The discovery of new evidence can constitute good 18 cause for the purposes of gap tolling if the petitioner could not have discovered the new evidence 19 prior to the filing of the state habeas petition in the lower court. See Rouse v. Perez, 2017 WL 20 3174534, at *3 (S.D. Cal. July 26, 2017); Davis v. Kibler, 2022 WL 2121907, at *4 (C.D. Cal. 21 Feb. 24, 2022). Petitioner argues he is entitled to gap tolling because the affidavits contained in 22 this habeas petition could “have come no sooner” than June 2017. (Doc. No. 10 at 1). 23 Specifically, “the alleged victim [] informed [the affiant] through casual conversation that he had 24 perjured himself by stating the petitioner was the one who shot at him because the petitioner was 25 now involved in a sexual relationship with the victim’s child’s mother.” (Id.). This argument 26 6 The fifth and sixth petitions, both filed in the California Supreme Court, on December 12, 2018 and 27 March 15, 2020, respectively, had no tolling consequence because the limitations period would have already expired. See Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (Petitioner is not entitled to 28 tolling where the limitations period has already elapsed). 1 lacks merit. The contention that the victim falsely accused Petitioner of shooting him because he 2 held a “grudge” was made in an attempt to discredit the victim during the trial. Thus, the 3 “discovery” of evidence does not constitute good cause to excuse substantial delays identified 4 above because Petitioner already knew the underlying facts of the “new evidence” before he filed 5 his first habeas petition with the superior court. See Rouse, 2017 WL 3174534, at *3. 6 Moreover, even were the Court to find good cause for the delay in filing this additional 7 petition, which raised the claims based on “new evidence” identified by Petitioner for the first 8 time, the Petition would still be time barred. As noted above, Petitioner’s fourth petition was 9 denied by the appellate court on Friday, April 27, 2018 but Petitioner did not file his fifth state 10 court petition until 2277 days later, on December 12, 2018. Because Petitioner failed to present 11 his fifth petition to the California Supreme Court without substantial delay, and offered no 12 argument as to good cause for this particular delay, it was not presented within a reasonable 13 amount of time. Consequently, even if the Court gave Petitioner the benefit of tolling for the 14 entire time between June 9, 2017 and Monday, April 30, 2018, when the AEDPA clock restarted, 15 the one-year AEDPA limitation period would have expired 157 days later on October 4, 2018. 16 Thus, even with the benefit of the “newly discovered evidence,” the Petition filed on March 2, 17 2020, was untimely by 515 days (16 months and 27 days). 18 Therefore, the Petition must be dismissed as time barred unless Petitioner can demonstrate 19 that he is entitled to equitable tolling or he satisfies the narrow gateway of actual innocence under 20 Schlup. 21 3. Equitable Tolling 22 AEDPA’s statutory limitations period may be equitably tolled. Holland v. Florida, 560 23 U.S. 631, 645 (2010). Equitable tolling is available if a petitioner shows: “(1) that he has been 24 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and 25 prevented timely filing.” Id. at 649. To show “extraordinary circumstances,” a petitioner must 26 show that “the circumstances that caused his delay are both extraordinary and beyond his 27

28 7 The Court credits Petitioner with two days due to April 27, 2018 falling on a Friday. 1 control”—a high threshold. Menominee Indian Tribe of Wisconsin v. United States, 577 U.S. 2 250, 255 (2016). “The requirement that extraordinary circumstances ‘stood in [a petitioner’s] 3 way’ suggests that an external force must cause the untimeliness. Waldron-Ramsey v. Pacholke, 4 556 F.3d 1008, 1011 (9th Cir. 2009) (emphasis added). Furthermore, a petitioner must show that 5 the extraordinary circumstances caused the untimely filing of his habeas petition. See Bills v. 6 Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citing Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 7 2003) (explaining that equitable tolling is available only when the extraordinary circumstances 8 were the cause of the petitioner’s untimeliness); Smith v. Davis, 953 F.3d 582, 595 (9th Cir. 2020) 9 (“Whether an impediment caused by extraordinary circumstances prevented timely filing is a 10 ‘causation question.’”). 11 To demonstrate that he has been pursuing his rights diligently, a petitioner must show that 12 he has “been reasonably diligent in pursuing his rights not only while an impediment to filing 13 caused by an extraordinary circumstance existed, but before and after as well, up to the time of 14 filing his claim in federal court.” Smith, 953 F.3d at 598-99. In other words, “when [a petitioner] 15 is free from the extraordinary circumstance, he must also be diligent in actively pursuing his 16 rights.” Id. at 599. The diligence required for equitable tolling does not have to be maximum 17 feasible diligence, but rather reasonable diligence. Holland, 560 U.S. at 653. And the court is not 18 to impose a rigid impossibility standard on petitioners, especially pro se prisoner litigants “who 19 have already faced an unusual obstacle beyond their control during the AEDPA litigation period.” 20 Fue v. Biter, 842 F.3d 650, 657 (9th Cir. 2016) (quoting Sossa v. Diaz, 729 F.3d 1225, 1236 (9th 21 Cir. 2013)). However, “in every instance reasonable diligence seemingly requires the petitioner 22 to work on his petition with some regularity—as permitted by his circumstances—until he files it 23 in the district court.” Smith, 953 F.3d at 601. Because Petitioner must show diligence before, 24 during, and after extraordinary circumstances prevented him from filing, the relevant time period 25 of the court’s analysis is July 20, 2016, the day the statute of limitations began to run, to March 2, 26 2020, the day Petitioner signed and constructively filed his federal petition. See Smith, 953 F.3d 27 at 598-99. Admittedly, “the threshold necessary to trigger equitable tolling under AEDPA is very 28 high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1062, 1066 (9th Cir. 1 2002) (citations omitted). 2 Petitioner argues equitable tolling applies because through “ongoing diligence” he 3 discovered “important facts” that both trial counsel and appellate counsel were “ineffective at trial 4 and on appeal.” (Doc. No. 19 at 11). In support of this argument, Petitioner cites, and attaches as 5 exhibits, letters from his appellate counsel from July 2014 through May 2016, including 6 responses to Petitioner’s requests for “pieces of evidence”; appellate counsel’s response that she 7 did not request certain documents as part of the appeal “as the appeal is concerned with what 8 happened at trial”; and appellate counsel’s repeated requests to “excuse her delay in responding” 9 to his ongoing letters. (See generally Doc. No. 19). 10 Generally, attorney negligence is not a sufficient basis for applying equitable tolling to the 11 2244(d)(1) limitation period. See Holland v. Florida, 560 U.S. 631, 651-52 (2010); Spitsyn v. 12 Moore, 345 F.3d 796, 800 (9th Cir. 2003) (“ordinary attorney negligence will not justify equitable 13 tolling”). More notably in this case, while Petitioner claims he has “shown due diligence” by 14 “continuing to pursue his claim,” he fails to cite any “extraordinary circumstance,” much less any 15 specific allegation of ineffective assistance of appellate counsel, that caused his failure to timely 16 file his petition. (See generally Doc. No. 19); see Smith, 953 F.3d at 591 (“if an extraordinary 17 circumstance is not the cause of a litigant’s untimely filing, then there is nothing for equity to 18 address”). Rather, the correspondence that Petitioner summarizes, presumably as the factual 19 predicate for his ineffective assistance of counsel claim, took place between 2014 and 2016, prior 20 to the relevant time period of July 20, 2016—the day the statute of limitations began to run and 21 March 2, 2020—the day Petitioner signed and constructively filed his federal petition. Thus, 22 Petitioner has not demonstrated how his counsel’s alleged ineffectiveness prevented him from 23 timely filing his Petition; nor does he make a showing of diligence during the relevant time 24 period, as required for the granting of equitable tolling. See Smith, 953 F.3d at 599. 25 The undersigned finds Petitioner fails to carry his burden of demonstrating extraordinary 26 circumstances that caused the untimely filing of his Petition. Consequently, the undersigned 27 recommends that Petitioner be denied equitable tolling and his petition be dismissed as untimely. 28 //// 1 4. Actual Innocence 2 “Actual innocence, if proved, serves as a gateway through which a prisoner may pass” 3 where he has failed to meet AEDPA’s statute of limitations. McQuiggin v. Perkins, 569 U.S. 4 383 (2013); see also Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011) (en banc). Under the 5 “actual innocence gateway” of Schlup, a petitioner’s procedurally barred claim may be considered 6 on the merits if his claim of actual innocence is sufficient to implicate a fundamental miscarriage 7 of justice. See Schlup v. Delo, 513 U.S. 298 (1995); Majoy v. Roe, 296 F.3d 770, 775-76 (9th Cir. 8 2002); Carriger v. Stewart, 132 F.3d 463, 477 (9th Cir.1997) (en banc). If petitioner presents 9 “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial 10 unless the court is also satisfied that the trial was free of nonharmless constitutional error, the 11 petitioner should be allowed to pass through the gateway and argue the merits of his underlying 12 claims.” Schlup, 513 U.S. at 316. 13 “[A] petitioner does not meet the [actual innocence] threshold requirement unless he 14 persuades the district court that, in light of the new evidence, no juror, acting reasonably, would 15 have voted to find him guilty beyond a reasonable doubt.” Id. at 329. “[H]abeas corpus petitions 16 that advance a substantial claim of actual innocence are extremely rare.” Id. at 321. However, 17 “[a] petitioner need not show that he is ‘actually innocent’ of the crime he was convicted of 18 committing; instead, he must show that ‘a court cannot have confidence in the outcome of the 19 trial.’” Majoy, 296 F.3d at 776 (quoting Schlup, 513 U.S. at 316 and Carriger, 132 F.3d at 478). 20 In analyzing this innocence claim, the federal habeas court “must consider all the 21 evidence, old and new, incriminating and exculpatory, without regard to whether it would 22 necessarily be admitted under rules of admissibility that would govern at trial.” House v. Bell, 23 547 U.S. 518, 538 (2006) (internal quotation marks and citation omitted). “Based on this total 24 record, the court must make ‘a probabilistic determination about what reasonable, properly 25 instructed jurors would do.’” Id. (quoting Schlup, 513 U.S. at 329). This “new evidence” must 26 only be newly presented, not newly available. Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 27 2003) (finding that medical records made before the start of trial, but not presented at trial, were 28 “new evidence” in support of petitioner’s actual innocence claim); but see Chestang v. Sisto, 522 1 F. App’x 389, 391 (9th Cir. 2013) (newly acquired witness declaration not sufficiently “new” to 2 support actual innocence claim because contents were within defendant’s knowledge at time of 3 trial and no explanation was given for not introducing it sooner). 4 a. Trial Evidence 5 In order to put the “new” evidence offered by Petitioner in support of his actual innocence 6 argument in context, the undersigned includes the following summary of relevant trial evidence 7 found in the February 4, 2016 California Court of Appeals opinion affirming the judgment of the 8 trial court:8 9 During the afternoon of April 27, 2012, in Lemoore, Andrew Otto was driving home in his turquoise Mustang after running errands, 10 when he noticed that a black sports utility vehicle (SUV), possibly an Expedition, was following him. The SUV had two occupants. 11 Otto could not identify the driver but recognized the passenger as Castaneda, whom he knew very well. 12 Otto wanted to confirm that the SUV was following him, so he 13 pulled into the parking lot of an auto parts store. The SUV pulled in behind him. Not wanting to have the SUV follow him home, Otto 14 then drove to a liquor store. He got out of his car and went into the liquor store. He bought two bottles of water and a lottery scratcher. 15 When Otto came out of the liquor store, he saw the black SUV parked in the store’s lot. Otto got into his car and drove off. The 16 black SUV continued to follow him. 17 Otto drove to his apartment complex and parked his car alongside the curb. The black SUV cruised slowly by, to the right of Otto’s 18 car, and then stopped. Otto walked along the sidewalk towards the SUV. Shrugging his shoulders and raising his hands with his palms 19 open, he asked, “What’s up?” Castaneda got out of the SUV on the passenger side, went around to the back of the SUV, pulled out a 20 gun, and fired two shots at Otto. Otto took off running as a bullet grazed his arm; he heard another shot as he ran. 21 Officer Mark Pescatore, who was dispatched to the scene, viewed 22 video recordings from the apartment complex’s video surveillance system. The entire series of events that unfolded in front of the 23 complex was captured on video, which showed Otto pulling up in his Mustang, followed by the black SUV; Otto walking over to the 24 black SUV; a passenger exiting the SUV and two muzzle flashes emanating from the passenger’s position behind the SUV; and Otto 25

26 8 On federal habeas review, “a determination of a factual issue made by a State court shall be presumed to be correct” unless rebutted by the petitioner by clear and convincing evidence. 28 U.S.C. 27 § 2254(e)(1); see also Schriro v. Landrigan, 127 S. Ct. 1933, 1939-40 (2007) (“AEDPA also requires federal habeas courts to presume the correctness of state courts’ factual findings unless applicants rebut 28 this presumption with ‘clear and convincing evidence.’ ”) (citing Section 2254(e)(1)). 1 running away. Pescatore also detected what he termed as “bullet splash” on an exterior building wall behind the spot where Otto was 2 standing at the time. The officer explained that “bullet splash” refers to localized damage to stucco at the point of impact of a 3 bullet. In addition, Pescatore obtained video recordings from the video surveillance system of the liquor store where Otto had 4 stopped; the video showed Otto leaving the store’s parking lot followed by the black SUV. 5 Otto, who was 32 years old at the time of trial, testified that he had 6 known Castaneda since the sixth grade; in fact, Castaneda used to be one of his best friends. Otto and Castaneda were members of the 7 Brown Pride Norteños, a subset of the Norteño gang in the Lemoore area. Otto had been affiliated with the Brown Pride 8 Norteños since he was 10 or 11 years old, and had vouched for Castaneda when the latter sought to join the gang. However, Otto 9 and Castaneda grew apart in 2003, after Castaneda slept with the mother of Otto’s children. 10 Also in 2003, Otto dropped out of the Norteños following 15 years 11 of active participation in the gang and gang-related criminal activities. He dropped out in part because he completed a prison 12 drug rehabilitation program with members of a rival gang. According to Otto, the Norteños deemed members who participated 13 in prison programs with members of rival gangs to be “no good” and “[n]ot in good standing” within the gang. He also testified that 14 the Norteños viewed dropouts as traitors. Indeed, Norteño members would attack dropouts so as to gain increased prestige within the 15 gang. 16 Officer John Paul Henderson of the Hanford Police Department testified for the prosecution as an expert witness on criminal street 17 gangs in Kings County. Henderson opined that Castaneda was a member of the Brown Pride Norteños, an aggressive and violent 18 Norteño subset based in Lemoore. Henderson testified that Norteño affiliates engaged in robberies, drug sales, deadly weapon assaults, 19 drive-by shootings, and murders. He also believed Otto was a Norteño dropout based on the fact that the California Department of 20 Corrections had classified him as such and had placed him in the “sensitive needs yard” during his prison commitments. He 21 explained that “dropouts [are] no longer welcomed in their gang” and would be killed in prison if not segregated into “sensitive needs 22 yards.” 23 Henderson testified about various aspects of Norteño culture. He stated the Norteño gang is governed by a set of rules known as the 24 “14 bonds.” The gang retaliates against members who break the bonds. Such retaliation ranges from assault to murder, but 25 ultimately depends on “political” considerations such as the status of the offending gang member, with higher-status members 26 suffering fewer consequences. Dropping out of the gang is a violation of the bonds and dropouts are considered enemies of the 27 gang. Consequently, the gang authorizes its rank-and-file members to attack dropouts without obtaining advance permission from the 28 gang’s command structure as is required for other crimes 1 committed on behalf of the gang. 2 Henderson explained that a gang member who shoots or kills a dropout gains respect and status in the gang. Gang members 3 commit attacks on dropouts, members of rival gangs, and law enforcement personnel to advance themselves within the gang 4 hierarchy: “Rival gangs, dropouts, and cops are three of the top things that are going to get [a gang member] the most respect and 5 status within [the] gang. So if you get any one of those three, you could be a nobody, who can turn into a guy who may be calling 6 shots within a certain time.” Henderson believed that in attacking Otto, Castaneda was enforcing the bonds. More specifically, he 7 explained, “when you become a gang member, you’re told the rules and you’re told you will assault dropouts … and he’s just following 8 the rules and being a good soldier.” 9 On the day of the shooting, Otto was wearing black clothes, including a black T-shirt with the words, “Step your game up, get 10 on my level.” Henderson testified that while a dropout dressed in red clothing would draw the gang’s attention because red is the 11 color associated with Norteños historically, a dropout’s choice of black clothing would not be particularly significant for the gang 12 despite the fact that gang members sometimes wear black and white clothing to “throw law enforcement off.” As for the words on 13 Otto’s shirt, Henderson testified that in his experience with gang members, he had “never seen that shirt or that wording,” but he did 14 not rule out the possibility that the words “could” have a gang- related meaning if the wearer was involved in a gang. Finally, 15 Henderson agreed that Otto’s words, “[w]hat’s up,” coupled with his open-palmed gesture, “could,” depending on the context, be 16 interpreted as an aggressive gesture. 17 Castaneda did not testify, nor did the defense call any other witnesses. 18 19 (Doc. No. 26-1 at 3-6). Of particular relevance in the analysis of Petitioner’s actual innocence 20 claim, the Court notes that Otto also testified during the trial that he talked to four different law 21 enforcement officers the night of the shooting. (Doc. No. 32 at 109). He testified he was 22 forthcoming with the officers within minutes of speaking to them, and stated he did not reveal the 23 identity of the shooter right away because he was in shock, angry, and wanted to “go take care of 24 it himself.” (Id. at 109-12). He also feared for his family and attempted to avoid coming to trial, 25 but chose to cooperate because “it’s the right thing to do.” (Id. at 113). Otto also testified that he 26 assaulted Petitioner ten years earlier when he found out Petitioner slept with Otto’s wife, but then 27 let the incident go; and he “protected” Petitioner when Petitioner was investigated by the Norteño 28 gang for sleeping with Otto’s wife. (Id. at 100-05). 1 Officer Alvaro Santos testified that Otto was scared, out of breath like he had been 2 running, and was upset when he first encountered him; and Otto provided him with limited 3 information and explained that although Otto told him he knew the identity of the shooter, he 4 would not reveal it at the time. (Id. at 54, 58-59). Officer John Paul Henderson testified that Otto 5 told him when he first spoke to him at the scene of the shooting that Petitioner shot him, and that 6 Otto was concerned with speaking to law enforcement for fear his family would be harmed. (Id. 7 at 301). Officer Henderson was also informed by another officer at the scene that Otto told him 8 Petitioner “always had a grudge against me since” he slept with Otto’s wife. (Id. at 298, 306). 9 b. Analysis 10 In order to successfully pass through the actual innocence “gateway,” a petitioner must 11 support his allegation of constitutional error with new reliable evidence that was not presented at 12 trial which can consist of “exculpatory scientific evidence, trustworthy eyewitness accounts, or 13 critical physical evidence.” Schlup v. Delo, 513 U.S. 298, 324 (1995). While affidavits may be 14 submitted and considered new evidence, they must be met with skepticism. See, e.g., Herrera v. 15 Collins, 506 U.S. 390, 423 (1993) (affidavits made years after trial—purporting to exculpate a 16 convicted prisoner by offering a new version of events—are “not uncommon” and “are to be 17 treated with a fair degree of skepticism” insofar as they are “obtained without the benefit of cross- 18 examination”). Here, Petitioner presents nine declarations, including his own, as “newly 19 discovered evidence [that] would have probably changed the outcome of the trial.” (Doc. No. 1 at 20 4). 21 First, Petitioner himself submitted two unnotarized declarations. (Doc. No. 1 at 25-28). 22 In his October 10, 2017 declaration, Petitioner states his sister, Roseann Castaneda, reported to 23 him that “she had discovered that [] Otto had made statements contradicting his trial testimony – 24 specifically with respect to the identification of [Petitioner] as the shooter”; and after receiving 25 advice from another prisoner, Petitioner asked his sister to obtain declarations from other 26 “witnesses” also reporting that Otto did not know who shot him, and named Petitioner as the 27 shooter for a variety of reasons, as discussed below. (Doc. No. 1 at 25). In an additional 28 February 13 declaration, of unknown year, Petitioner submits that his trial attorney failed to 1 present witnesses in his defense that would testify consistent with several of the declarations 2 discussed below, mainly that Petitioner was at Mr. Bustamante’s apartment at the time of the 3 shooting.9 (Doc. No. 1 at 27). Petitioner's own declaration fails to constitute new reliable 4 evidence for his claims of actual innocence. Schlup, 513 U.S. at 324. “A self- 5 serving declaration is not the kind of evidence that meets the Schlup ‘more than likely that no 6 reasonable jury would have convicted him’ standard.” Jackson v. Beard, 2014 WL 2657536, at 7 *7 (S.D. Cal. June 12, 2014) (citing Herrera, 506 U.S. 390, 423 (1993); Baran v. Hill, 2010 WL 8 466153, at *7 (D. Or. Feb. 9, 2010); McArdle v. Sniff, No. EDCV 08-552 PSG (JC), 2009 WL 9 1097324, at *5 (C.D. Cal. Apr. 20, 2009)). As recognized by Respondent, Petitioner’s attempt to 10 corroborate his own declaration with those of his sister and acquaintances does not serve to make 11 his self-serving declaration more reliable. (Doc. No. 29 at 11 (citing Porter v. Adams, 2007 WL 12 2703195, at *9 (E.D. Cal. Sept. 14, 2007) (“The court finds the declarations offered by petitioner 13 to be rather low in terms of reliability, both because of their tardy presentation and because the 14 declarants, consisting of petitioner and his family members, are hardly disinterested witnesses.”). 15 Second, Petitioner offers the following declarations from Natasha Gonzalez, Regina 16 Escandon, Lydia Alarcon, and Roseann Castaneda. 17 • Ms. Castaneda, Petitioner’s sister, submitted an unnotarized declaration on September 15, 18 2017. (Doc. No. 1 at 12-14). She declared that she ran into Ms. Escandon in June 2017, 19 and Ms. Escandon told her that Otto told her that he “really didn’t know who shot him” 20 and “actually didn’t see the shooter,” but he named Petitioner after being pressured by law 21 enforcement to name someone. (Id. at 13). Ms. Escandon told Ms. Castaneda that she 22 was scared to come forward earlier, and she was sorry for not “saying anything long ago.” 23 (Id. at 14). 24

25 9 Petitioner also states trial counsel failed to “investigate” and present evidence that he was on the phone with the mother of his child and texting another friend at the time of the shooting; and contends based on 26 “personal inquiries and visual inspection” by family members, that surveillance video footage was not properly investigated/obtained by trial and appellate counsel. (Doc. No. 1 at 27-28). However, the 27 argument advanced in the Petition as to why Petitioner is actually innocent is based solely on the theory that the victim did not know who shot him, and he falsely identified Petitioner because he was angry 28 Petitioner slept with the mother of his children. (See Doc. No. 1 at 4-6). 1 • Ms. Escandon submitted a notarized declaration on June 30, 2017. (Id. at 19-20). She 2 declared that she spoke with Otto in May 2012. (Id. at 19). He talked about wanting to 3 stop using methamphetamine and that he was recently shot. (Id.). Ms. Escandon reports 4 that Otto told her he “was not sure” who shot him because a sports utility vehicle was 5 blocking his view, but he “thought” it was Petitioner, and Petitioner did not like him 6 because of the mother of Otto’s child. (Id.). 7 • Ms. Gonzalez submitted an unnotarized declaration on August 28, 2017. (Id. at 16-17). 8 She declared that she spoke with Otto in April 2012, the day after he was shot, and he told 9 her that he was not sure who shot him because he had been “up for three straight days” 10 under the influence of methamphetamine, and he did not tell law enforcement of his 11 uncertainty in identifying Petitioner because of his “hatred” toward Petitioner because he 12 slept with the mother of his child. (Id. at 16). She agreed to submit a declaration after 13 running into Ms. Escandon in 2017, and was hesitant to come forward because she did not 14 know if Otto was lying and she was afraid of him. (Id.). 15 • Ms. Alarcon submitted an unnotarized declaration on September 1, 2017. She declared 16 that she read the declaration of Ms. Escandon and found it to be accurate, as she was 17 present during Ms. Escandon’s conversation with Otto. (Id. at 23). Ms. Alarcon also 18 stated that she remembered the conversation because of “how cruel it was to hear that he 19 wrongly accused a man of shooting him knowing he wasn’t for sure” and “what bothered 20 [her] most about that conversation was the fact that [Otto] told [Ms. Escandon] that the 21 guys he accused of shooting him had it coming anyway, because of the unfinished 22 business he had with him in the first place.” (Id.). 23 As an initial matter, the declaration of Petitioner’s sister, Ms. Castaneda, is subject to 24 attack based on the inherent bias of a family member. See Jones v. Taylor, 763 F.3d 1242, 1249 25 (9th Cir. 2014)(testimony from family is less probative than testimony from disinterested 26 witnesses); Perez v. Foulk, 2015 WL 9487919, at *15 (C.D. Cal. Aug. 5, 2015); Morgan v. 27 Martels, 2009 WL 2591265, at *6 (E.D. Cal. Aug. 21, 2009)(“It has been routinely recognized 28 that family members are considered to be inherently biased.”). Moreover, as noted by 1 Respondent, all of the declarations are from acquaintances of Petitioner’s sister, or each other; 2 and all of the declarations were obtained around the same time in 2017, “when the women 3 allegedly ran into each other on separate occasions by happenstance and discussed what [Otto] 4 had told Ms. Gonzalez, Ms. Escandon and Ms. Alcaron separately, approximately five years of 5 each other,” all of which renders the reliability of their accounts questionable. See Jones, 763 6 F.3d at 1249 (fact that all three witnesses attesting to innocence came forward around the same 7 time period years after the trial undercut witnesses’ reliability); see also Herrera, 506 U.S. at 417 8 (affidavits were given over eight years after petitioner’s trial and “no satisfactory explanation has 9 been given as to why the affiants waited . . . to make their statements”). The Court also notes that 10 the declarations are not entirely consistent with each other, nor do they consistently support 11 Petitioner’s argument that the victim falsely accused him of shooting him specifically in 12 retaliation for sleeping with the mother of Otto’s child. For instance, Ms. Castaneda declared that 13 Ms. Escandon told her Otto said he named Petitioner as the shooter because he was pressured by 14 law enforcement to say something, but Ms. Escandon stated that Otto told her he named 15 Petitioner as the shooter because Petitioner did not like him because of his relationship with the 16 mother of Otto’s children. Finally, as noted by Respondent, the declarants do not provide 17 eyewitness accounts of the shooting, only that they were told by Otto that he was unsure of who 18 shot him and named Petitioner for disparate reasons. (Doc. No. 29 at 12). 19 Third, while not discussed with specificity in the Petition as support for his actual 20 innocence claim, Petitioner includes several other declarations “supporting Petitioner’s alibi” 21 from Simon Melendrez, Ignacio Sanchez, Jr., Jesus Bustamante, and Rosemarie Domingo 22 Morgan. (Doc No. 1 at 30-36). All of the declarations state that Petitioner was at a barbeque on 23 April 27, 2012, the day of the shooting, from 4:30 or 5:00 to anywhere between 7:00 to 8:00 pm. 24 (Id.). Petitioner claims in his own declaration that he asked his trial attorney to call several of 25 these individuals as witnesses in his defense to testify as to his whereabouts “around the time of 26 the alleged crimes,” but his attorney declined to do so because they were gang members and 27 would be discredited. (Id. at 27). 28 Respondent argues that this is not “new” evidence for the purposes of an actual innocence 1 analysis, because Petitioner was aware of the evidence prior to trial. (Doc. No. 29 at 11). 2 However, it is well-established in the Ninth Circuit that “new reliable evidence” under Schlup 3 requires only “newly presented evidence,” defined as evidence that was not presented at trial, as 4 opposed to “newly discovered evidence.” Griffin, 350 F.3d 962-63. Here, this “alibi” testimony 5 was not presented at trial, it was not discussed at trial, and Petitioner offered a reason that the 6 evidence was not introduced; thus, arguably under Ninth Circuit law it qualifies as “newly 7 presented” evidence for the Court to consider under the Schlup standard. Cf. Machuca v. 8 Robertson, 2018 WL 5270493, at *12-13 (C.D. Cal. Aug. 29, 2018) (evidence was not new even 9 though it was not presented at trial, because it was known and discussed at trial); Norton v. 10 Arnold, 2016 WL 1158590, at *11 (C.D. Cal. Feb. 12, 2016) (evidence was not new as it was 11 available to defense counsel at trial and the trial court was aware of the evidence); Chestang, 522 12 F. App’x at 391 (newly acquired witness declaration not sufficiently “new” to support actual 13 innocence claim because contents were within defendant’s knowledge at time of trial and no 14 explanation was given for not introducing it sooner). That said, as correctly noted by 15 Respondent, these declarations are from gang members, and those affiliated with gang members, 16 which casts significant doubt on their credibility. See Schlup, 513 U.S. at 332 (when deciding an 17 actual-innocence claim, the “likely credibility of the affiants bear on the probable reliability of 18 that evidence). In addition, the accounts offered in the declarations are not fully consistent with 19 each other. Each declarant identifies a slightly different window of time during which Petitioner 20 allegedly attended the barbeque; and the declarants disagree as to whether Petitioner left the 21 barbeque to meet his “baby momma” or to meet his sister. (Doc. No. 29 at 11 (citing Doc. No. 1 22 at 30-36)). Finally, as discussed above, declarations of Petitioner’s friends and acquaintances are 23 less reliable to the extent they would be considered a close relationship. See House, 547 U.S. at 24 552 (noting that testimony by friends or relations of the accused might have less probative value 25 than testimony from disinterested witnesses). 26 Based on the foregoing, the Court finds that Petitioner has failed to meet his burden of 27 showing that in light of all the evidence, including “new” evidence not introduced at trial, it is 28 more likely than not that no reasonable juror would have convicted him. Schlup, 513 U.S. at 327. 1 As argued by Respondent, there was ample evidence to support the verdict that Petitioner is guilty 2 of the charged crimes, including consistent accounts of the shooting from the victim, 3 corroboration with separate video footage, and testimony from experts and the victim that he was 4 putting himself and his family at risk by testifying that Petitioner had shot him. (Doc. No. 29 at 5 13-14). Moreover, as noted by the state superior court in denying the merits of Petitioner’s actual 6 innocence claim on state habeas review,10 7 in an effort to undermine Mr. Otto’s testimony, Defense counsel attempted during trial to impugn his credibility by arguing that (1) 8 Mr. Otto named Petitioner as his shooter due to a grudge against the same; (2) The grudge existed because Petitioner had an affair with 9 Mr. Otto’s ‘baby mama’ []; (3) Mr. Otto had substantial active gang ties; and (4) Mr. Otto had demonstrated significant untruthfulness 10 in connection with much of the testimony given by him during the trial. Although the information set forth in the declarations of 11 Roseann Castaneda, Natasha Gonzalez, Regina Escandon, and Lydia Alarcon would serve to further undermine the veracity of Mr. 12 Otto’s eye witness identification of Petitioner, for purposes of California Penal Code section 1475, ‘new evidence’ is not evidence 13 which is ‘merely cumulative, corroborative, collateral or impeaching.’ 14 (Doc. No. 26-9 at 2). 15 In light of all of the evidence, the Court cannot find that had the jury also been presented 16 with the nine declarations which Petitioner now offers, it is more likely than not that no 17 reasonable juror would have convicted him. Petitioner does not come forward with a credible 18 declaration of guilt by another, nor credible declarations by an eyewitness to the shooting, nor 19 exculpatory scientific evidence. Instead he offers his own declaration and declarations from his 20 and his sister’s acquaintances. Such hearsay and latter-day impeachment evidence rarely shows 21 no reasonable juror would have believed a witness’ account as testified to in court. Clark v. 22

23 10 Respondent generally notes the findings of the state court are entitled to a presumption of correctness. (Doc. No. 29 at 14). Respondent is correct that on federal habeas review, “a determination of a factual 24 issue made by a State court shall be presumed to be correct” unless rebutted by the petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (emphasis added). However, the Court is constrained to 25 note that deference to the state court decisions under § 2254(d) only applies to “any claim that was adjudicated on the merits in state court proceedings.” Here, the Court is not considering the merits of 26 Petitioner’s claim of actual innocence asserted in his Petition; rather, Petitioner has proffered his actual innocence as cause to excuse his untimely petition under the Schlup actual innocence gateway. The 27 deference to state court decision on the merits pursuant to Section 2254(d) has no application in the context of a Schlup claim because it pertains only to a “claim that was adjudicated on the merits” in state 28 court. See Duncan v. Ryan, 2015 WL 13735818, at *199 (D. Ariz. Aug. 7, 2015). 1 Lewis, 1 F. 3d 814, 824 (9th Cir. 1993). Accordingly, the undersigned concludes Petitioner's 2 claim of actual innocence does not implicate a fundamental miscarriage of justice nor does it fall 3 within the narrow category of cases which pass through the Schlup actual innocence gateway. 4 See Coleman v. Allison, 223 F.Supp.3d 1035, 1073-74 (C.D. Cal. 2015), aff’d sub nom, Coleman 5 v. Sherman, 715 F. App’x 756 (9th Cir. 2018) (”In the few cases the Court has located in which 6 the Schlup standard was found to have been met, the “new evidence” consisted of credible new 7 evidence that the petitioner had a solid alibi for the time of the crime, numerous exonerating 8 eyewitness accounts of the crime, DNA evidence excluding the petitioner and identifying another 9 potential perpetrator, a credible confession by a likely suspect explaining that he had framed the 10 petitioner, and/or evidence contradicting the very premise of the prosecutor's case against the 11 petitioner.”) (collecting cases). 12 The undersigned recommends the Petition be dismissed as untimely. 13 III. CERTIFICATE OF APPEALABILITY 14 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 15 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 16 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 17 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a 18 certificate of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule 19 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court 20 denies habeas relief on procedural grounds without reaching the merits of the underlying 21 constitutional claims, the court should issue a certificate of appealability only “if jurists of reason 22 would find it debatable whether the petition states a valid claim of the denial of a constitutional 23 right and that jurists of reason would find it debatable whether the district court was correct in its 24 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 25 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 26 could not conclude either that the district court erred in dismissing the petition or that the 27 petitioner should be allowed to proceed further.” Id. Here, reasonable jurists would not find the 28 undersigned’s conclusion debatable or conclude that petitioner should proceed further. The 1 | undersigned therefore recommends that a certificate of appealability not issue. 2 Accordingly, it is RECOMMENDED: 3 1. Respondent’s Motion to Dismiss (Doc. No. 24) be GRANTED. 4 2. The Petition (Doc No. 1) be dismissed as untimely. 5 3. Petitioner be denied a certificate of appealability. 6 NOTICE TO PARTIES 7 These findings and recommendations will be submitted to the United States district judge 8 | assigned to the case, pursuant to the provisions of U.S.C. § 636(b)(1). Within fourteen (14) days 9 | after being served with these findings and recommendations, a party may file written objections 10 | with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 11 | Recommendations.” Parties are advised that failure to file objections within the specified time may 12 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 13 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 ' | Dated: _ August 24, 2022 Mihaw. Wh. foareh Zaskth 16 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

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