Lopez 260320 v. Shinn

• Court: District Court, D. Arizona
• Decided: November 30, 2020
• Docket: 2:17-cv-03348
• Status: Unknown

Opinion

1 WO 2 NOT FOR PUBLICATION 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Loreto Valenzuela Lopez, No. CV-17-03348-PHX-DJH

10 Petitioner, ORDER

11 v.

12 Attorney General of the State of Arizona, et al., 13 Respondents. 14 15 This matter is before the Court on Loreto Valenzuela Lopez’s Petition for Writ of 16 Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) (“Petition”) and the Report and 17 Recommendation (“R&R”) issued by United States Magistrate Judge Deborah M. Fine on 18 November 2, 2018 (Doc. 25). Petitioner filed Objections to the R&R on November 15, 19 2018 (Doc. 26). Respondents filed a Response to the Objections on December 12, 2018 20 (Doc. 27). 21 I. Background and Objection 22 In the R&R, the Magistrate Judge set forth a concise and accurate summary of the 23 background of this case. (Doc. 25 at 2-7). Petitioner does not object to the facts in the 24 R&R (See Doc. 26). The Court finds that these facts are supported by the record and 25 incorporates them here. See Thomas v. Arn, 474 U.S. 140, 149 (1985) (noting that the 26 relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on 27 its face require any review at all . . . of any issue that is not the subject of an objection”). 28 1 The Court summarizes the relevant facts here for clarity.1 2 Petitioner was convicted of kidnapping under A.R.S. § 13-1304, theft by extortion 3 under A.R.S. § 13-1804, and aggravated assault under A.R.S. § 13-1204. (Doc. 14-6 at 4 137). The jury found that all three counts were dangerous offenses and found seven 5 aggravating factors proven for all three counts. (Id. at 137-158). Petitioner was sentenced 6 to a total imprisonment of twenty-one years. (Id. at 200-203). Petitioner asserts that he 7 was not involved in the kidnapping and that he was present at the scene of the kidnapping 8 only because he was interested in buying a pit bull from Carlos Lizarrago, to whose home 9 the victim was brought. (Doc. 14-1 at 7-8). The victim, however, identified Petitioner in 10 a photo lineup, and Lizarrago accepted a plea bargain in exchange for testifying against 11 Petitioner. (Id.). 12 The following post-trial procedural facts are excerpted from the R&R and have not 13 been objected to:

14 Appointed appellate counsel filed an opening brief in which counsel averred pursuant to Anders v. California, 386 U.S. 738 (1967) that he had reviewed 15 the record and had not identified an “arguable question of law that [was] not frivolous.” (Doc. 14-1 at 52). He requested the Arizona Court of Appeals to 16 search the record for fundamental error, and to grant Petitioner leave to file a pro per supplemental brief. (Id. at 52). Appointed counsel wrote Petitioner 17 a letter stating he was enclosing “a copy of all records on appeal, including reporter’s transcripts that were in his possession. (Id. at 61). Petitioner filed 18 his pro per supplemental brief on January 12, 2012. (Doc. 14-2 at 2-30). In its memorandum decision filed in July 2012, the Arizona Court of Appeals 19 identified eleven issues Petitioner had asserted as grounds for relief (Doc. 14-1 at 5-6), concluded there were no “meritorious grounds for reversal of 20 Lopez’s conviction or modification of” his sentence, and affirmed his conviction and sentence. (Id. at 28). The Arizona Court of Appeals issued 21 its mandate on September 10, 2012, stating that Petitioner had filed neither a motion for reconsideration nor a petition for review to the Arizona Supreme 22 Court within the required time limits. (Doc. 14-2 at 105).

23 Petitioner timely filed a Notice of Post-Conviction Relief (“PCR”) in the Superior Court on August 20, 2012. (Id. at 133-140). The superior court 24 appointed counsel for Petitioner and ordered Petitioner’s trial and appellate counsel to produce the entire file to PCR counsel. (Id. at 142-143). PCR 25 counsel filed a Notice of Completion of PCR Review with the superior court, averring that she was not able “to discern any colorable claim upon which to 26 base” a PCR petition. (Id. at 145-146). The superior court ordered PCR

27 1 As did the Magistrate Judge in the R&R, this Court will rely upon the facts as presented by the Arizona Court of Appeals in its memorandum decision on Petitioner’s direct appeal. 28 (Doc. 25 at 2, citing 28 U.S.C. § 2254(e)(1) and recognizing that the appellate court’s stated facts are entitled to the presumption of correctness). 1 counsel to remain in an advisory capacity for Petitioner’s PCR action, and to forward the file to Petitioner. (Id. at 148-149). PCR counsel notified the court 2 that she did not provide Petitioner with a copy of his file “because prior counsel did not provide her with one[,]” and that she had instead reviewed 3 the court’s file. (Id. at 151).

4 In December 2012, Petitioner filed a motion to compel her trial attorney to provide him with his file. (Id. at 154-155). The superior court ordered 5 Petitioner’s trial counsel to provide him with his entire file within 15 days and to file a notice of compliance. (Id. at 158). The court also granted 6 Petitioner an extension of time to file his PCR petition. (Id.). Petitioner’s trial counsel filed a notice with the superior court averring that her office had 7 mailed Petitioner’s file to him at his current address at the “Buckeye facility via priority certified mail, and received confirmation it was delivered and 8 received on November 28, 2012.” (Id. at 161). In February 2013, Petitioner advised the court he had not received his entire file, and requested the court 9 to “find out what is the delay.” (Id. at 163). In April 2013, the superior court advised Petitioner that in January 2013, trial counsel had “filed a notice of 10 mailing avowing that all documents in [her] possession were turned over to the defendant.” (Id. at 11) Petitioner filed a second motion to compel, stating 11 that his trial counsel had not complied with the court’s order to produce his file. (Doc. 14-3 at 2-3). On May 9, 2013, the trial court denied this motion, 12 again referring to trial counsel’s notice she had turned over all documents in her possession to Petitioner. (Id. at 13). The court stated that if Petitioner 13 “requires additional documents he can make a public records request.” (Id.). On June 5, 2013, the superior court dismissed Lopez’s PCR petition, because 14 the deadline had passed without the filing of a petition, and without a showing of good cause. (Id. at 15). 15 In July 2013, Petitioner requested an extension of time to file his PCR 16 petition, again stating that he had not obtained file transcripts from his trial counsel, and advising the court he had made a request for public records. (Id. 17 at 17). The court denied his request, noting that his initial PCR proceeding had been dismissed. (Id. at 19) 18 In December 2013, Lopez filed a second Notice of PCR. (Id. at 21-24). He 19 asserted that he was not able to speak or comprehend the English language, and that “all previous documents and notices . . . were in English.” He further 20 declared that the victim had acknowledged he did not commit the crime on which he was convicted, that there were several procedural errors at trial, and 21 that he would be raising a claim of actual innocence. (Id. at 23). In subsequent filings, Petitioner requested an extension of time to file a petition (Id. at 26) 22 and a motion requesting production of DNA test results (Id. at 28-29). In its minute entry dated January 27, 2014, the trial court dismissed Lopez’s notice 23 of PCR as untimely and successive. (Id. at 31-32) The court further addressed his claim of actual innocence and concluded that he had failed to meet the 24 burden set forth in Arizona Rule of Criminal Procedure 32.1(h). (Id. at 31). Additionally, the court stated that Petitioner was not entitled to relief under 25 Rule 32.1(f) and that he had failed to state a claim for which relief could be granted in an untimely PCR petition, citing Rule 32.4(a). (Id. at 32). 26 Petitioner filed a petition for PCR on February 6, 2014. (Id. at 34-37). He 27 alleged ineffective assistance of counsel by his appellate counsel and his PCR counsel, argued he was without fault in failing to file his pro per petition, and 28 stated he was actually innocent of the crimes on which he was convicted. (Id. at 35-36). He asserted he is illiterate in the English language, and that his 1 record was incomplete due to the incompetence of prison officials or of his counsel, who he alleged destroyed or willfully withheld his court papers. (Id. 2 at 36). The superior court dismissed Petitioner’s second petition for PCR on August 20, 2014. (Id. at 58-59). The court found that Petitioner’s claims of 3 ineffective assistance of counsel and of prosecutorial misconduct were untimely and not excusable pursuant to Rules 32.4(a) and 32.1(d), (e), (f), 4 (g), or (h) of the Arizona Rules of Criminal Procedure. (Id. at 58). The court noted that a claim of ineffective assistance of PCR counsel is not a colorable 5 claim, and that Petitioner had not provided facts or evidence necessary to meet the burden required to assert a successful Rule 32.1(h) claim for relief. 6 (Id. at 59). Moreover, the court held that Petitioner’s failure to timely file a PCR petition was not excused by Rule 32.1(f) because his notice of PCR was 7 not “of right.” (Id.)

8 Lopez filed a petition for review with the Arizona Court of Appeals in September 2014. (Id. at 61-71). In a September 20, 2016 memorandum 9 decision, the court of appeals granted review but denied relief. (Id. at 90). The court of appeals adopted the superior court’s analysis, finding the lower 10 court’s ruling had “clearly identified, fully addressed, and correctly resolved Lopez’s claims.” (Id.). On November 4, 2016, the Arizona Court of Appeals 11 issued its mandate, stating that the deadlines for filing a motion for reconsideration or a petition for review with the Arizona Supreme Court had 12 passed without action by Petitioner.

13 (Doc. 25 at 4-7). 14 In his habeas Petition, Petitioner alleges ineffective assistance of counsel based 15 upon counsel’s failure to “call witnesses and investigate Petitioner’s claim that he was not 16 involved in the crime.” (Doc. 1 at 6). In Response, Respondents assert that the Petition 17 was untimely filed and was procedurally defaulted without excuse. (Doc. 14 at 13-24). In 18 her R&R, Magistrate Judge Fine first addressed whether the Petition was time-barred under 19 the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Magistrate Judge 20 Fine found that, although statutory tolling was in effect when Petitioner filed a notice of 21 Post-Conviction Relief (“PCR”) on August 20, 2012, tolling ended and “the AEDPA one- 22 year statute of limitations commenced to run on July 6, 2013, thirty-one days after the 23 superior court’s dismissal of [Petitioner’s] PCR action.” (Doc. 25 at 9). Magistrate Judge 24 Fine also concluded that the subsequent PCR Petition was untimely and did not entitle 25 Petitioner to additional statutory tolling. (Id.). Therefore, the limitations period expired in 26 July 2014, which was more than three years before Petitioner filed the Petition in this 27 matter. (Doc. 25 at 9-10). Magistrate Judge Fine additionally concluded that equitable 28 tolling was not applicable because Petitioner cannot establish extraordinary circumstances 1 justifying equitable tolling. (Doc. 25 at 10-12). Finally, Magistrate Judge Fine considered 2 Petitioner’s actual innocence argument and found that his arguments merely addressed 3 issues of accomplice liability and would not meet the high threshold required to establish 4 actual innocence. (Doc. 25 at 13). Accordingly, Magistrate Judge Fine recommended that 5 the Petition for Writ of Habeas Corpus be denied and dismissed with prejudice. (Doc. 25 6 at 15). She further recommended that Petitioner’s Motion for Leave of Court to Request 7 Discovery Pursuant to Rule 6 (Doc. 17) be denied and that a Certificate of Appealability 8 be denied because dismissal of the Petition is justified by a plain procedural bar and 9 reasonable jurists would not find the procedural ruling debatable. (Doc. 25 at 15). 10 Petitioner filed an Objection to the Magistrate Judge’s R&R (Doc. 26). In the 11 Objection, Petitioner first, briefly and without explanation, states that he is entitled to 12 equitable tolling. (Doc. 26 at 2). Petitioner next briefly mentions that he is claiming 13 ineffective assistance of counsel. (Doc. 26 at 2). Finally, Petitioner asserts that he should 14 prevail on his actual innocence claim because the evidence need not be newly discovered, 15 but instead must only be newly presented. (Doc. 26 at 3-4). Therefore, according to 16 Petitioner, “point[ing] out from the police report what no one had presented before” would 17 constitute such evidence, thus establishing his actual innocence. (Id.). In Response, 18 Defendants urge this Court to consider Petitioner’s Objections not sufficiently specific and 19 therefore akin to a “failure to object.” (Doc. 27 at 2). Although Petitioner presents minimal 20 argument in his Objection, the Court will address his arguments. 21 II. Standards 22 “A judge of the court may accept, reject, or modify, in whole or in part, the findings 23 or recommendations made by the magistrate judge.” 28 U.S.C.A. § 636(b)(1). A district 24 court evaluating a Magistrate Judge’s report may specifically adopt those portions of the 25 report to which no “specific written objection” is made, so long as the factual and legal 26 bases supporting the findings and conclusions set forth in those sections are not clearly 27 erroneous. See Fed. R. Civ. P. 72(b); Thomas, 474 U.S. at 149-50. A district court is not 28 required to review any portion of a magistrate judge’s R&R that is not the subject of an 1 objection. Thomas, 473 U.S. at 149. See also 28 U.S.C.A. § 636(b)(1) (the district court 2 “shall make a de novo determination of those portions of the report or specified proposed 3 findings or recommendations to which objection is made”). 4 III. Analysis 5 The AEDPA imposes a one-year statute of limitations on state prisoners’ federal 6 petitions for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) states that 7 the limitations period shall run from the latest of the date on which: (1) direct review 8 becomes final, (2) an unlawful state-created impediment to filing is removed, (3) a new 9 constitutional right is made retroactively available, or (4) the factual predicate of the claims 10 presented could have been discovered with due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D); 11 Lee v. Lampert, 653 F.3d 929, 933 (9th Cir. 2011); Hasan v. Galaza, 254 F.3d 1150, 1153 12 (9th Cir. 2001). 13 After conducting its own de novo review, the Court agrees with the Magistrate Judge 14 that this Petition is untimely because Petitioner filed it more than three years after the 15 AEDPA statute of limitations expired, because equitable tolling does not apply, and 16 because Petitioner cannot meet the standard for establishing actual innocence. 17 A. Triggering Date For Petitioner’s Limitations Period 18 In assessing the start date for the limitations period under § 2244(d)(1), the 19 Magistrate Judge determined that the statute of limitations for Petitioner’s habeas petition 20 began to run on July 6, 2013. The Court agrees. 21 As found by Magistrate Judge Fine, absent tolling, the statute of limitations on 22 Petitioner’s habeas petition began to run on August 24, 2012. After his conviction, 23 Petitioner filed a timely direct appeal with the Arizona Court of Appeals, which issued its 24 memorandum decision affirming his conviction and sentence on July 24, 2012. (Doc. 14- 25 1 at 4-29). That decision notified Petitioner that he would have thirty days to either file a 26 petition for review or to file a motion for reconsideration. (Id. at 28-29); see Ariz. R. Crim. 27 P. 31.21(b)(2)(A). Petitioner failed to do either. Therefore, absent tolling, the limitations 28 period for seeking habeas relief began to run on August 24, 2012, because that is the date 1 on which the judgment became final by the conclusion of direct review. See 28 U.S.C. § 2 2244(d)(1)(A) (the petitioner must file a petition within one year of “the date on which the 3 judgment became final by the conclusion of direct review or the expiration of the time for 4 seeking such review”). 5 As the Magistrate Judge noted, however, by the time the judgment became final on 6 August 24, 2012, Petitioner had already filed his first notice of PCR on August 20, 2012. 7 (Doc. 14-2 at 133). Therefore, when the one-year limitations period began to run, it was 8 immediately subject to statutory tolling. 28 U.S.C. § 2244(d)(2); see Lott v. Mueller, 304 9 F.3d 918, 921 (9th Cir. 2002) (noting that, under AEDPA, “a prisoner is entitled to tolling 10 for the pendency of a ‘properly filed application for State post-conviction or other collateral 11 review with respect to the pertinent judgment or claim’”); see also Isley v. Ariz. Dep’t of 12 Corr., 383 F.3d 1054, 1056 (9th Cir. 2004) (stating that, in Arizona, post-conviction review 13 is pending once a notice of post-conviction relief is properly filed). Petitioner failed to file 14 a timely PCR petition, and the Maricopa County Superior Court therefore dismissed his 15 PCR proceedings on June 5, 2013. (Doc. 14-3 at 15p). Petitioner did not seek review of 16 this dismissal; therefore, the AEDPA limitations period began to run on July 6, 2013, which 17 is thirty-one days after dismissal of the PCR proceeding. See Ariz. R. Crim. P. 32.9(c) 18 (“Within thirty days after the final decision of the trial court on the petition for post- 19 conviction relief or the motion for rehearing, any party aggrieved may petition the 20 appropriate appellate court for review of the actions of the trial court”) (amended and 21 renumbered as Ariz. R. Crim. P. 32.16(a)(1), eff. Jan. 1, 2020). This limitations period 22 expired one year later, on July 6, 2014. 23 Although Petitioner filed a second Notice of PCR in December 2013, as well as a 24 PCR petition in February 2014, these filings were untimely and therefore did not toll the 25 limitations period. See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (recognizing that, 26 if a PCR petition is untimely under state law, the federal limitations period would not be 27 tolled); Allen v. Siebert, 552 U.S. 3, 7 (2007) (finding that, if a state PCR petition is rejected 28 as untimely, it was not “properly filed” and does not toll the AEDPA limitations period). 1 Petitioner did not file his Petition until September 28, 2017, which was more than 2 three years after the July 6, 2014, expiration of the limitations period. Accordingly, absent 3 equitable tolling or an exception, the Petition is untimely. 4 B. Equitable Tolling 5 The Court also agrees with Magistrate Judge Fine that Petitioner is not entitled to 6 equitable tolling. In his Objection, without presenting a specific basis for his argument, 7 Petitioner asserts that he is entitled to equitable tolling. (Doc. 26 at 2). 8 AEDPA’s statute of limitations is subject to equitable tolling under limited 9 circumstance. Holland v. Florida, 560 U.S. 631, 648-49 (2010). For equitable tolling to 10 apply, a petitioner must show “(1) that he has been pursuing his rights diligently, and (2) 11 that some extraordinary circumstance stood in his way and prevented” him from timely 12 filing the petition. Id. at 649 (quoting Pace, 544 U.S. at 418 (internal quotation marks 13 omitted)). A petitioner must exercise “reasonable diligence, not maximum feasible 14 diligence.” Holland, 560 U.S. at 653 (internal citations and quotations omitted). Equitable 15 tolling is applied sparingly, as reflected by the “extraordinary circumstances” requirement, 16 and is unavailable in most cases. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th 17 Cir. 2009); Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that “the 18 threshold necessary to trigger equitable tolling [under AEPDA] is very high, lest the 19 exception swallow the rule”) (citation omitted)). Some external force must cause the 20 untimeliness rather than petitioner’s own “oversight, miscalculation or negligence.” 21 Waldron-Ramsey, 556 F.3d at 1011 (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th 22 Cir. 2008)). A petitioner bears the burden of showing that equitable tolling is appropriate 23 in his case. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). 24 Petitioner cannot establish that extraordinary circumstances prevented him from 25 timely filing his petition. First, Petitioner’s former counsel’s alleged failure to transmit 26 Petitioner’s complete file to him during the PCR proceedings and Petitioner’s failure to 27 timely file his PCR petition do not amount to extraordinary circumstances. While the PCR 28 action was pending, Petitioner filed a December 12, 2012, Motion to Compel Attorney to 1 Provide File. (Doc. 14-2 at 154-56). The trial court issued a January 14, 2013, order 2 instructing counsel to provide the file to Petitioner within fifteen days and further granted 3 Petitioner a 60-day extension of time from the date of the order to file his PCR petition, 4 making the petition due on March 15, 2013. (Doc. 14-2 at 158). On January 25, 2013, 5 trial counsel filed a Notice of Mailing, in which she attested that she mailed Petitioner’s 6 file to him via priority certified mail and that she received a delivery confirmation dated 7 November 28, 2012. (Doc. 14-2 at 161). Petitioner filed a second Motion to Compel on 8 April 26, 2013, in which he stated he still had not received his file. (Doc. 14-3 at 2-3). 9 Relying on trial counsel’s prior notice of mailing, the trial court denied the motion and 10 instructed Petitioner to make a public records request if Petitioner required additional 11 documents. (Doc. 14-3 at 13). By minute entry dated June 5, 2013, the trial court dismissed 12 Petitioner’s PCR proceeding because the PCR petition was due by March 15, 2013, and 13 because Petitioner had failed to file the petition before the deadline. (Doc. 14-3 at 15). On 14 July 10, 2013, approximately one month after the minute entry dismissing the PCR action 15 and almost four months after the March 15, 2013, petition due date, Petitioner filed a 16 Motion for Extension of Time based upon not receiving his file. (Doc. 14-3 at 17). The 17 trial court denied this motion because the PCR proceeding had already been dismissed. 18 (Doc. 14-3 at 19). 19 This series of events does not establish extraordinary circumstances sufficient to toll 20 the limitations period. First, based upon trial counsel’s affidavit, the evidence does not 21 support Petitioner’s contention that he did not receive his file; further, even if there was 22 some evidence supporting this contention, it is doubtful that this would be sufficient to 23 meet the extraordinary circumstances requirement. See Luna v. Kernan, 784 F.3d 640, 646 24 (9th Cir. 2015) (stating that “run-of-the-mill mistakes by one’s lawyer that cause a filing 25 deadline to be missed do not rise to the level of extraordinary circumstances”). Second, 26 and more significantly, Petitioner had the options of timely requesting an extension and 27 filing a public records request. Instead, however, Petitioner permitted the filing deadline 28 to expire and only requested an extension of time to file the PCR petition almost four 1 months after the petition was due and approximately one month after his matter was 2 dismissed. Plaintiff’s own failure to timely file his petition does not constitute 3 extraordinary circumstances that would toll the limitations period. See Sossa v. Diaz, 729 4 F.3d 1225, 1229 (9th Cir. 2013) (stating that equitable tolling is only available “when 5 extraordinary circumstances beyond a prisoner’s control make it impossible to file a 6 petition on time and the extraordinary circumstances were the cause of the [petition’s] 7 untimeliness” (emphasis in original) (internal quotations omitted)). 8 Likewise, Petitioner cannot establish that his limited English proficiency merits 9 equitable tolling. “To establish extraordinary circumstances based on lack of English 10 proficiency, a habeas petitioner must allege specific, particularized facts showing that he 11 was unable to procure legal materials in his own language or obtain translation assistance 12 during the relevant time period.” Arcineiga-Rangel v. Ryan, 2016 WL 2957798, at *3 (D. 13 Ariz. May 23, 2016). Because Petitioner has not made such a showing, this claim also fails 14 and equitable tolling is not available. Accordingly, the Court agrees with Magistrate Judge 15 Fine and finds that the limitations period for Petitioner to file his habeas petition expired 16 on July 6, 2014. 17 C. Actual Innocence 18 Petitioner has also not established a claim of actual innocence that would be an 19 equitable exception to AEDPA’s statute of limitations. Petitioner asserts that he should be 20 permitted to present evidence that had not previously been presented; this includes 21 evidence that had not been previously “pointed out from the police report” and evidence 22 that he did not have prior connections to his co-defendant. (Doc. 26 at 3). 23 In very limited circumstances, an actual innocence claim allows courts to consider 24 otherwise untimely habeas corpus petitions. Stewart v. Cate, 757 F.3d 929, 937-38 (9th 25 Cir. 2014). The Supreme Court has held that, in order for a petitioner to successfully claim 26 an actual innocence exception, he must be able to show that “it is more likely than not that 27 no reasonable juror would have convicted him in the light of the new evidence.” Schulp v. 28 Delo, 513 U.S. 298, 327 (1995). The evidence must be reliable and must not have been 1 presented at trial. Id. at 324. Reliable evidence includes exculpatory scientific evidence, 2 trustworthy eyewitness accounts, and critical physical evidence. Id. This is an “exacting 3 standard” that “permits review only in the extraordinary case.” Lee v. Lampert, 653 F.3d 4 929, 938 (9th Cir. 2011) (internal quotations omitted). 5 Here, Petitioner fails to present new, reliable evidence in support of his actual 6 innocence claim. He states that he intends to present new evidence from the police report 7 that was not previously presented. As noted by Magistrate Judge Fine, this includes 8 evidence regarding inconsistent testimony. It also includes evidence of his co-defendant’s 9 “connections to the others involved in the crime, but not to Lopez as they claimed.” (Doc. 10 26 at 3). The Court agrees with the Magistrate Judge that this proposed new evidence does 11 not satisfy the high threshold required to establish actual innocence. Rather, the “new 12 evidence,” at best, attacks the sufficiency of the evidence supporting Petitioner’s 13 conviction; it does not present new, exculpatory evidence sufficient to establish factual 14 innocence. See Witkin v. Yates, 2013 WL 394719, at *9 (E.D. Cal. Jan. 30, 2013) (rejecting 15 actual innocence claim when “Petitioner's arguments center on the legal sufficiency of the 16 evidence supporting his conviction, rather than his factual innocence based upon new 17 evidence”). Accordingly, the Court agrees with Magistrate Judge Fine that Petitioner has 18 not produced reliable evidence that shows that “it is more likely than not that no reasonable 19 juror would have convicted him in the light of the new evidence.” Schulp, 513 U.S. at 327. 20 D. Motion for Leave of the Court to Request Discovery Pursuant to Rule 6 21 As a final matter, Petitioner also filed a Motion for Leave of the Court to Request 22 Discovery Pursuant to Rule 6 (Doc. 17). Magistrate Judge Fine recommended that this 23 Motion be denied because Petitioner fails to present “specific allegations that provide the 24 Court with reason to believe that [the requested] documents would demonstrate that 25 Petitioner’s claims should pass through the Schlup [actual innocence] gateway.” (Doc. 25 26 at 14). The Court agrees. See Bracy v. Gramley, 520 U.S. 899, 904, 908-09 (1997) (noting 27 that habeas petitioners are not entitled to broad discovery and recognizing that a petitioner 28 may secure discovery only for good cause based upon specific allegations); see also 1|| Calderon v. U.S. Dist. Court for the N. Dist. of California, 98 F.3d 1102, 1106 (9th Cir. || 1996) (“courts should not allow prisoners to use federal discovery for fishing expeditions || to investigate mere speculation”). IV. Conclusion 5 Based on the foregoing, 6 IT IS ORDERED that Magistrate Judge Fine’s R&R (Doc. 25) is accepted and 7\| adopted. Petitioner’s Objections (Doc. 26) are overruled. 8 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant 9|| to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice. 10 IT IS FURTHER ORDERED that Petitioner’s Motion for Leave of Court to 11 || Request Discovery Pursuant to Rule 6 (Doc. 17) is denied. 12 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 13 || Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis || on appeal are denied because dismissal of the Petition is justified by a plain procedural bar 15 || and jurists of reason would not find the procedural ruling debatable. 16 IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and || enter judgment accordingly. 18 Dated this 30th day of November, 2020. 19 20 oC. . foe 21 norable' Diang4. Huretewa 02 United States District Judge 23 24 25 26 27 28

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