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United States District Court, Northern District of California

May 7, 2003


The opinion of the court was delivered by: Susan Illston, United States District Judge


The petition for writ of habeas corpus is dismissed because it was not timely filed




James Lewis Houston, a California prisoner at the California Correctional Center in Susanville, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 1998 conviction. This matter is now before the court for consideration of respondent's motion to dismiss the petition as untimely. The court finds that the petition was not filed by the deadline in 28 U.S.C. § 2244(d) and therefore will dismiss the petition as untimely.


James Lewis Houston was convicted at a jury trial in the Contra Costa County Superior Court of second degree murder and was found to have used a gun during the commission of the offense. On October 30, 1998, he was sentenced to a term of 18 years to life in state prison.

Houston appealed and filed a petition for writ of habeas corpus. His habeas petition was consolidated with his direct appeal by the California Court of Appeal. The California Court of Appeal affirmed the judgment of conviction on November 16, 2000. Houston's petition for review was denied by the California Supreme Court on February 28, 2001.

The current federal habeas petition was signed on October 4, 2002 and stamped "filed" in this court on November 5, 2002. There is no visible postmark on the envelope in which the petition was mailed to the court.


The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). The ordinary starting date of the limitations period is the date on which the judgment becomes final after the conclusion of direct review or the time passed for seeking direct review. See 28 U.S.C. § 2244(d)(1).

Houston's petition for review was denied by the California Supreme Court on February 28, 2001, and his conviction became final ninety days thereafter, on May 29, 2001, when the time for seeking a petition for writ of certiorari expired. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where petitioner did not file petition for certiorari, his conviction became final 90 days after the California Supreme Court denied review). Absent any tolling, the federal petition had to be filed by May 29, 2002, to be timely. The federal petition was not deemed filed until November 5, 2002, about five months after the deadline.*fn1

The one-year statute of limitations will be tolled under § 2244(d)(2) for the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). Houston receives no statutory tolling for his state habeas petition because it was filed while his state direct appeal was pending and was decided at the same time as his direct appeal.

The final step is to determine whether equitable tolling applies. Equitable tolling of the limitation period is available upon a showing of extraordinary circumstances beyond a petitioner's control which prevented him from timely filing the petition. See, e.g., Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (equitable tolling will not be available in most cases because extensions of time should only be granted if extraordinary circumstances beyond prisoner's control make it impossible for him to file petition on time), cert. denied, 523 U.S. 1, and cert. denied, 523 U.S. 1061 (1998), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060 (1999).

Houston argues in his petition that he is entitled to equitable tolling because he is actually innocent of the crime of which he has been convicted. Although the actual innocence gateway of Schlup v. Delo, 513 U.S. 298 (1995), may save some late habeas petitions, see Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002), it does not do so here because Houston has not shown that he can pass through the gateway.

The Supreme Court allows consideration of certain claims in habeas that would be rejected for procedural reasons if that would result in a miscarriage of justice. The "miscarriage of justice" exception is limited to habeas petitioners who can show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup, 513 U.S. at 327 (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)). Under this exception, a petitioner may establish a procedural "gateway" permitting review of defaulted claims if he demonstrates "actual innocence." Schlup, 513 U.S. at 316 & n. 32. "[I]f a petitioner . . . presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of non-harmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims." Id. at 316. The required evidence must create a colorable claim of actual innocence, that the petitioner is innocent of the charge for which he is incarcerated, as opposed to legal innocence as a result of legal error. See id. at 321. It is not enough that the evidence show the existence of reasonable doubt, petitioner must show "that it is more likely than not that no `reasonable juror' would have convicted him." Id. at 329; see Van Buskirk v. Baldwin, 265 F.3d 1080, 1084 (9th Cir. 2001) ("the test is whether, with the new evidence, it is more likely than not that no reasonable juror would have found [p]etitioner guilty"). See, e.g., Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir. 1997) (en banc), cert. denied, 523 U.S. 1133 (1998) (petition qualified for gateway on a showing principally that the chief prosecution witness had confessed to the crime under oath in the post conviction court and that prosecution had failed to produce file disclosing that witness was a known liar). "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324. The "new" evidence need not be newly available, just newly presented — that is, evidence that was not presented at trial due to unavailability or exclusion. Sistrunk v. Armenakis, 292 F.3d 669, 673 n. 4 (9th Cir. 2002) (en banc), cert. denied, 71 U.S.L.W. 3471 (2003).

Houston has presented no new evidence in support of his actual innocence claim. Rather, his argument is based on the same evidence that the trial court considered. The old evidence is not sufficient to enable Houston to pass through the actual innocence gateway. Houston is therefore not entitled to equitable tolling.


For the foregoing reasons, respondent's motion to dismiss is GRANTED. (Docket #6.) The petition is dismissed because it was not timely filed. The clerk shall close the file.


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