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Teahan v. Almager

February 27, 2008

PAUL MICHAEL TEAHAN, PETITIONER,
v.
V.M. ALMAGER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hayes, Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

Pending before the Court is the Report and Recommendation of Magistrate Judge Nita L. Stormes, filed August 29, 2007, recommending that the Court grant Respondent's motion to dismiss Petitioner's Petition for Writ of Habeas Corpus. (Doc. # 11).

BACKGROUND

On May 15, 1995, a jury in California State Superior Court convicted Petitioner Paul Michael Teahan of five counts of attempted second degree murder and four counts of assault with a firearm. Respondent's Lodgment # 2 at 692. The conviction stemmed from a shooting which took place on April 23, 1994, at Montgomery Waller Community Park in San Diego, California. Respondent's Supplemental Lodgment # 2 at 56. Following the conviction, the trial judge sentenced Petitioner to an aggregate term of forty-two years in prison. Respondent's Suppl. Lodg. # 2.

Petitioner appealed the jury verdict to the California Court of Appeal on the grounds that there was insufficient evidence and the trial judge improperly instructed the jury. Respondent's Lodg. #

1. On October 23, 1996, the California Court of Appeal denied the appeal. Respondent's Lodg. # 1. Petitioner subsequently filed a Petition for Review in the California Supreme Court, and on January 15, 1997, the California Supreme Court denied the Petition. Respondent's Lodg. # 3.

On September 23, 2004, and more than seven and a half years after the California Supreme Court denied Petitioner's Petition for Review, Petitioner filed a Petition for Writ of Habeas Corpus in the California State Superior Court. Respondent's Lodg. # 4. Petitioner contended therein that the trial court erroneously admitted an in-court identification which was tainted by a previously impermissibly suggestive pretrial photo-lineup. On December 10, 2004, the Court denied the Habeas Petition on the grounds that Petitioner failed to raise the photo-lineup issue on direct appeal. Respondent's Lodg. # 5.

On January 12, 2005, Petitioner filed a Petition for Writ of Habeas Corpus in the California Court of Appeal, raising again the issue of the alleged impermissibly suggestive pretrial photo-lineup. On February 24, 2005, the California Court of Appeal denied the Petition on the grounds that (1) Petitioner failed to raise the issue on direct appeal, (2) the Petition was untimely, and (3) Petitioner did not carry his burden of establishing that the pretrial photo-lineup was unduly suggestive. Respondent's Lodg. # 7.

On June 14, 2006, Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court. On January 17, 2007, the California Supreme Court denied the Petition. Respondent's Lodg. # 9.

On February 27, 2007, Petitioner filed a second Petition for Writ of Habeas Corpus in the California State Superior Court on the grounds that his sentence violated his Sixth Amendment right to a jury trial under to Cunningham v. California, 127 S.Ct. 856 (2007). On April 19, 2007, the Court denied the Petition. Respondent's Lodg. # 11.

On March 29, 2007, Petitioner filed the presently pending Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of California. (Doc. # 1). The Petition alleges that (1) Petitioner's counsel on appeal was constitutionally ineffective, (2) Petitioner was falsely identified during his jury trial because of an impermissibly suggestive pretrial photo-lineup, and (3) Petitioner's sentence violated his right to jury trial. On May 23, 2007, Respondent moved to dismiss the Petition on the grounds that it was barred by the Antiterrorism and Effective Death Penalty Act's (AEDPA) one-year statute of limitations. (Doc. # 7). On June 26, 2007, Petitioner opposed the motion on the grounds that he was factually innocent of the crimes underlying his conviction, and that time-barring his Petition would be a miscarriage of justice. (Docs. # 8-9). In support of his opposition to the motion to dismiss, Petitioner lodged exhibits with the Court, including statements made by four alibi witnesses which were never presented at Petitioner's jury trial. Petitioner's Lodgment in Opposition to Respondent's Motion to Dismiss # 5 (Doc. # 9). The alibi witnesses statements tend to show that Petitioner met with friends at approximately 5:45 P.M. on April 23, 1994 (the night of the shooting), and that Petitioner was not nervous during the evening. Petitioner's Lodg. in Opp. to Respondent's Motion to Dismiss # 5 (Doc. # 9).

On August 29, 2007, Magistrate Judge Nita L. Stormes issued a Report and Recommendation recommending that the Court grant Respondent's motion to dismiss Petitioner's Petition. (Doc. # 11). The Magistrate Judge concluded that Petitioner's Petition was time-barred because it was filed after the running of the AEDPA's one-year statute of limitations. The Magistrate Judge further concluded that neither statutory nor equitable tolling applied under the facts alleged in the Petition and in Petitioner's opposition to the motion to dismiss. (Doc. # 11 at 6-9); see also (Docs. # 1, 8-9). The Magistrate Judge concluded that statutory tolling did not apply because the AEDPA's statute of limitations had already run by the time Petitioner filed a Habeas Petition in the California State Superior Court. The Magistrate Judge concluded that equitable tolling did not apply because Petitioner did not submit "new reliable evidence" which made it more probable than not that no reasonable jury seeing the evidence would have found Petitioner guilty beyond a reasonable doubt. (Doc. # 11 at 9).

On September 24, 2007, Petitioner filed objections to the Report and Recommendation. (Doc. # 12). In the objections, Petitioner contends that the Magistrate Judge improperly ignored the newly submitted statements of the alibi witnesses. Petitioner contends that the alibi witness statements were not presented at trial, and that the statements are properly considered by the District Court in examining his claim of actual innocence under Schlup v. Delo, 513 U.S. 298, 316-24 (1995), and Griffin v. Johnson, 350 F.3d 956, 962-63 (9th Cir. 2003).

On November 28, 2007, this Court Ordered Respondent to respond to Petitioner's objections to the Report and Recommendation, and in particular, to "Petitioner's legal and factual claims with respect to actual innocence." (Doc. # 13). On December 20, 2007, ...


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