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DAVIS v. VAUGHN

United States District Court, S.D. California


September 14, 2005.

EMMETT DAVIS, Petitioner,
v.
TOMMY E. VAUGHN, Respondent.

The opinion of the court was delivered by: ANTHONY BATTAGLIA, Magistrate Judge

Report and Recommendation Granting Respondent's Motion to Dismiss the Petition as Time-Barred [Doc. No. 13]
Petitioner, Emmett Davis, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his October 13, 1989 conviction in the San Diego Superior Court, Case No. CRN14996, for attempted murder, second degree robbery and use of a fire arm. This is Davis' first petition in this Court. Respondent moves to dismiss the petition as time-barred pursuant to 28 U.S.C. § 2244(d). Petitioner has filed an opposition. Based upon a review of all the materials, and for the reasons set forth herein, it is recommended that Respondent's Motion to Dismiss the petition as time-barred be GRANTED. Factual History

On Sunday, February 5, 1989 at about 10:30 a.m.,*fn1 Cherie Sison drove her car into a parking lot at the shopping mall in Carlsbad, California where Ms. Sison worked. [Respondent's Motion to Dismiss "RMD", Attach.1: Ct. of App. Opinion and Remittitur, filed August 12, 1991, Case No. D011775, p. 2]. The assailant, later identified as Petitioner, Emmet Davis, was driving a car that had its passenger side window covered with a brown paper or cloth. [RMD, Attach. 1, p. 2]. Petitioner pulled up next to Ms. Sison's car, aimed a gun at Ms. Sison from the other side of the covered window and shot her. [Id.]. Petitioner then entered Ms. Sison's vehicle and began beating her saying, "You're a real bitch". Ms. Sison then saw Petitioner's hand as he took her purse. [Id.]. Ms. Sison's co-worker, John Elling, arrived in the same parking lot for work at about 10:45 a.m. [Id. at 3]. He saw a man run from Ms. Sison's car to another car and drive away. [Id.]. Ms. Sison was in the hospital for six days as a result of the attack. [Id.].

  The victim, Cherie Sison, and the assailant, Petitioner, had dated on and off since 1985, had lived together for a brief period and had a daughter together in 1988. [RMD, Attach. 1, p. 3]. Ms. Sison testified at trial that prior to the crime, Petitioner had physically attacked her, had threatened to kill her several times and that she had previously attempted to obtain a restraining order against him. [Id.]. Immediately following the attack, John Elling was unable to correctly identify Petitioner as the attacker, but later made a positive identification at trial. [RMD, Attach.3: Ct. of App. Order Denying Relief, filed October 7, 2003, Case No. D042849, p. 1-2].

  In preparation for trial, the defense hired Mr. Reavis of Reavis Investigations. [Petition to U.S. Dist. Ct for Writ of Habeas Corpus "Pet.", filed October 6, 2004, Case No. CV04-08334, p. 2-3; RMD Attach. 2: Sup. Ct. Order Denying Pet., p. 6]. Mr. Reavis interviewed Marylou Pyle, an employee of the Six Pence Inn located in Carlsbad CA. [Pet. p. 6; RMD, Attach. 2, p. 1-2]. Petitioner had checked into the Six Pence Inn at some point before noon on the day of the shooting. [Pet. p. 6-8; RMD, Attach. 2, p. 2]. Ms. Pyle initially told Mr. Reavis that she believed she had checked Petitioner into the motel at some point between 10:00 a.m. and 11:00 a.m., but could only be certain that it was before noon. [RMD, Attach. 2, p. 2]. At trial Ms. Pyle testified that she checked Petitioner into the motel after 9:00 a.m., but before 10:30 a.m. [Id.]. Both defense and prosecution hired investigators to examine the time required to drive from Tustin, the location of the motel, to Vista, the scene of the crime. [RMD, Attach. 2, p. 2]. The evidence presented at trial demonstrated that the travel time between the motel and the scene of the crime was between 51 and 65 minutes. [RMD, Attach. 2, p. 2; Pet., p. 6]. The prosecution was able to establish that there was sufficient time for Petitioner to arrive by 10:30am in Vista to commit the crime [RMD, Attach.3, p. 2].

  Procedural History

  Based on Petitioner's October 13, 1989, conviction for attempted murder, second degree robbery and use of a fire arm, the San Diego Superior Court sentenced Petitioner to 15 years to life on January 9, 1990. [Pet., p. 3]. The Court of Appeal for the Fourth Appellate District affirmed this conviction on August 12, 1991. [RMD, Attach. 1, p. 10; Pet., p. 3]. Based on the same grounds raised in the instant petition, Petitioner filed his first unsuccessful request for state habeas relief in the San Diego Superior Court on or about July 21, 2003. [RMD, Attach. 3, p. 2-3; Pet., p. 5]. On or about September 4, 2003, Petitioner filed a subsequent habeas petition, raising the same issues, in the California Court of Appeal, which was also denied. [RMD, Attach. 3, p. 1; Pet., p. 5]. On October 16, 2003, Petitioner filed a habeas petition, also on the same grounds, in the California Supreme Court, which was again denied on July 21, 2004. [RMD, Attach 4: Petition and July 21, 2004 Order Denying Relief, Case No. S119904; Pet., p. 5].

  Petitioner filed the instant habeas petition in the District Court for the Southern District of California on October 6, 2004. Petitioner challenges his conviction and raises three claims for relief as follows: (1) that there was a fundamental miscarriage of justice because he is factually innocent of attempted murder, thereby violating his due process, fourteenth amendment right, and the California Constitution; (2) ineffective assistance of counsel during trial resulting in a violation of his constitutional rights; (3) that the trial court's denial of the claims within the instant petition violated his right to due process of law. [Pet., p. 6-10]. Discussion

  Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d), a state prisoner has one year from the time his conviction becomes final, "by the conclusion of direct review or the expiration of the time for seeking such review," to file a petition for a writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1)(A). Alternatively, a federal habeas corpus petition will be considered timely if it is filed one year from the time "the factual predicate for the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). The statute of limitations is tolled, however, while "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). The instant Petition was filed in this Court after April 24, 1996 and is therefore governed by these statutes of limitations.

  The California Court of Appeal affirmed Petitioner's conviction on August 12, 1991. However, because Petitioner's state court judgement became final in 1991, five years prior to the AEDPA's effective date of April 24, 1996, Petitioner had a grace period of one year following this effective date in which to file a habeas petition. Patterson v. Stewart, 251 F.3d 1243, 1246-47 (9th Cir. 2001). In the instant situation, Petitioner filed his first state collateral proceeding in San Diego Superior Court in 2003, six years after the one-year limitation period expired and is therefore procedurally barred from bringing habeas claims in this Court. [RMD, Attach. 3, p. 2-3; Petition, p. 5].

  If a petitioner procedurally defaults, federal habeas review can still be made available if the petitioner can demonstrate that there was cause for the procedural default that is accompanied by actual prejudice or if the petitioner can demonstrate that refusal to review the claims will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). While Petitioner concedes he procedurally defaulted the claims raised in the instant petition, he argues that the default must be excused under the fundamental miscarriage of justice exception. [Pet. p. 6-7; Petitioner's Motion in Opposition "PMO", p. 3-4].

  For a "miscarriage of justice" claim to prevail, a petitioner must be able to show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent" by presenting evidence of innocence that is 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." Schlup v. Delo, 513 U.S. 298, 327, 316 (1995). Additionally, to be credible, a claim of actual innocence must be supported with new and reliable evidence that was not presented at trial due to unavailability or exclusion. Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir. 2002) (emphasis added). It is not enough that evidence submitted to support a claim of actual innocence show the existence of reasonable doubt, the petitioner must show that it is more likely than not that "no reasonable juror would have convicted him in light of the new evidence." Schlup, 513 U.S. at 327. A court must consider the "probative force of relevant evidence that was either excluded or unavailable". Id. at 327-28. The test is "whether, with the new evidence, it is more likely than not that no reasonable juror would have found [petitioner] guilty." Sistrunk, 292 F.3d at 673. Once a petitioner's claim of actual innocence is established, the gateway is opened for a court to review the merits of the constitutional claims that would otherwise be barred. Id.

  In support of his actual innocence claim, Petitioner submits statements of facts and argues that: (1) trial counsel's failure to present evidence of Ms. Pyle's pre-trial statements regarding Petitioner's arrival time amounts to a violation of Petitioners due process rights because such testimony would have proved his factual innocence (2) trial counsel's failure to object to the testimony of the prosecution's witness about the time it took to travel from Petitioner's place of lodging to the scene of the crime amounted to ineffective assistance of counsel and is therefore a violation of Petitioner's Fourteenth Amendment rights and (3) the trial court's denial of the claims within the instant petition was a violation of Petitioner's right to due process of law. [Pet., p. 6-8]. Because factual innocence must be established before a review of constitutional claims is possible, it is necessary to begin by addressing Petitioner's first and second contentions supporting his claim of factual innocence.

  Petitioner concedes that at trial Ms. Pyle testified that she checked Petitioner into the motel after 9:00am but before 10:30am. [Pet. p. 6]. However, prior to the trial, Ms. Pyle had previously stated to investigators working on behalf of the defense that she believed she had registered Petitioner between 10:00am and 11:00am on the day of the crime. [RMD, Attach. 2, p. 2; Pet. p. 6]. Petitioner contends that the prior out of court statements Ms. Pyle made to investigators would prove his factual innocence and argues that it was defense counsel's failure to present this evidence of Ms. Pyle's conflicting statements that amounts to a violation of Petitioner's due process right to a fair and impartial trial. [Pet. p. 6]. The record shows that Ms. Pyle was thoroughly examined at trial regarding the time she registered Petitioner. [RMD, Attach. 3, p. 1]. This is harmful to Petitioner's case for two reasons. First, the evidence is disqualified from being used to support his claim of factual innocence. The evidence that Petitioner seeks to use has already been presented in his trial and is therefore not new within the meaning of the relevant standard. Further, the conflicting statements Ms. Pyle made in and out of court about the time of Petitioner's arrival is not proof of actual innocence and is merely a indication that she was uncertain about the exact time that petitioner checked into the hotel and that she could only be certain that it was before noon. [RMD, Attach. 2, p. 2; RMD, Attach. 3, p. 2].

  Even if this evidence were new, it falls short of establishing that it was more likely than not that no reasonable juror would have found Petitioner guilty. Sistrunk, 292 F.3d at 673. While Petitioner asserts that the eyewitness to the crime was unable to initially identify Petitioner correctly, Petitioner fails to mention that the witness later positively identified Petitioner at the time of trial. [RMD, Attach. 2, p. 2]. Further, Petitioner fails to state that the victim of the attempted murder had been his girlfriend with whom he had a child, that they had broken up prior to the shooting, and that there was evidence that Petitioner had made prior threats of violence to the victim. [RMD, Attach. 2, p. 2]. Although the victim did not see Petitioner, she was able to identify him as the shooter by his voice, his car and his hands. [RMD, Attach. 2:Order Denying Hab., p. 2]. With all the additional methods the Prosecution used to establish its case against Petitioner, Petitioner has failed to demonstrate that it is more likely than not that no reasonable juror would have found Petitioner guilty.

  Petitioner also seems to imply that trial counsel's failure to object to the testimony of the prosecution's witness, Mr. Jenson, who investigated the travel time from the motel to the scene of the crime, was a forfeiture of an opportunity to establish Petitioner's innocence. [See Pet., p. 6]. Petitioner contends that Mr. Jensen's investigation was unscientific, and that trial counsel should have therefore objected to any testimony regarding it, because: (1) Mr. Jenson's testimony that he left the Sixpence Inn between 12:30 p.m. and 12:45 p.m. and arrived at the scene of the crime around 51 minutes later traveling at 53 m.p.h. was unscientific (2) Mr. Jenson conducted his test on a Thursday whereas the attack occurred on a Sunday and that the two days would create markedly different driving conditions. [Pet., p. 6-7]. Again this evidence is not new. Even if this evidence were new, it falls short of establishing that it was more likely than not that no reasonable juror would have found Petitioner guilty and for the same reasons stated above, undermine Petitioner's argument.

  Since Petitioner has failed to establish actual innocence, the Court need not address the merits of Petitioner's constitutional claims.

  Conclusion

  For the reasons set forth herein, it is recommended that Respondent's Motion to Dismiss the petition for habeas corpus be GRANTED. This Report and Recommendation will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(1988). Petitioner must file any written objections to this Report and Recommendation with the court and serve a copy on all parties on or before October 5, 2005. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed on or before October 19, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of this Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir 1991).

20050914

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