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].
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]. ...