The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER: (1) DECLINING TO ADOPT THE FINDINGS AND CONCLUSIONS OF UNITED STATES MAGISTRATE JUDGE; (2) GRANTING PETITIONER'S AMENDED MOTION FOR LEAVE TO AMEND THE PETITION; (3) DIRECTING THE CLERK OF COURT TO FILE THE PROPOSED AMENDED PETITION AS A FIRST AMENDED PETITION; AND, (4) ISSUING A SCHEDULING ORDER ON PETITIONER'S MOTION FOR DISCOVERY
Petitioner is a California prisoner proceeding pro se with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner challenges his San Diego County Superior Court conviction of two counts of attempted murder, contending that: (1) newly discovered evidence showing that he was not the driver of the car from which the shots were fired undermines the prosecution's case; (2) the state court erred in denying the habeas petition in which he presented the newly discovered evidence; (3) he is actually innocent; and (4) in light of the newly discovered evidence there is insufficient evidence to support his conviction. (Pet. at 6-9.) Respondent has filed an Answer to the Petition accompanied by a Memorandum of Points and Authorities in Support, contending that Petitioner is not entitled to habeas relief because: (1) the Petition was filed after expiration of the one-year statute of limitations set forth in 28 U.S.C. § 2244(d); (2) the claims are not cognizable on federal habeas corpus; and (3) the state court decisions denying Petitioner's claims were neither contrary to, nor involved an unreasonable application of, clearly established federal law. (Doc. Nos. 12-13.) Petitioner has filed a Traverse. (Doc. No. 31.)
Presently before the Court is a Report and Recommendation ("R&R") submitted by United States Magistrate Judge Cathy Ann Bencivengo which recommends dismissing the Petition as untimely, or alternately denying the Petition because Petitioner has not established actual innocence and the remaining claims do not present federal questions. (Doc. No. 37.) Petitioner has filed Objections to the R&R. (Doc. No. 52.) Petitioner has also filed a Motion for Discovery seeking to compel Respondent to turn over exculpatory materials, and an Amended Motion for Leave to Amend the Petition in order to adequately plead the federal basis of his claims. (Doc. Nos. 41, 50.)
The Court has reviewed the R&R, as well as Petitioner's Objections and Motions, pursuant to 28 U.S.C. § 636(b)(1), which provides that: "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."
28 U.S.C. § 636(b)(1). For the following reasons, the Court declines to adopt the findings and conclusions of the Magistrate Judge, grants Petitioner's Amended Motion for leave to amend, directs that the proposed amended petition be filed as a First Amended Petition, and issues a briefing schedule directing a response to the Motion for Discovery.
Petitioner was convicted on April 12, 1996, after a joint trial, of two counts of attempted murder as the driver of a car from which his co-defendant Richard Charles Lee was found to have shot two brothers, Mark and Michael Parish. The appellate court affirmed the convictions of both men on December 17, 1998, although it modified Lee's sentence, and the state supreme court denied the consolidated petitions for review on March 9, 2000. (Lodgment Nos. 7, 10.) Lee, however, obtained habeas relief from the trial court on August 31, 2000. (Pet. Ex. E, In re Lee, No. HC16243 (Cal.Sup.Ct. Aug. 31, 2000).) The order which vacated Lee's conviction and ordered a new trial did so in a summary fashion, stating that relief is appropriate because "the People do not oppose the petition" as they "conceded that there appears to be newly discovered evidence which is sufficiently credible to cast doubt on the integrity of [Lee's] convictions." (Id. at 1.) Petitioner contends that to this day he does not know exactly what evidence resulted in the overturning of Lee's conviction, but believes it was based on a letter dated July 14, 1998, sent by the District Attorney to Lee's attorney, which states that the District Attorney had received third-hand information regarding Lee which was being disclosed to Lee pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963). (Traverse Ex. A.) In that letter, the District Attorney informed Lee's counsel that Darnell Jackson, through his attorney, had approached the District Attorney with an offer of proof regarding information that Jackson had "about certain unsolved cases." (Id.) The letter states that Jackson informed the District Attorney that Petitioner and Arnold Adkins were the people who shot the Parish brothers, that Jackson had "described for his attorney the facts of how and where the Parish brothers were shot," that Jackson's "statements were consistent with the police reports with the exception of Adkins being identified as one of the shooters instead of Lee," and states that Adkins was recently deceased. (Id.) The letter reports that Jackson made the following statement:
Jackson stated that Richard Lee was in fact involved in a shooting that same day, but not the shooting of the Parish brothers. Jackson told his attorney that Richard Lee met up with Adkins and [Petitioner] at Anthony Riley's house after the shooting of the Parish brothers. Jackson stated that Lee came from a car function at Martin Luther King Park. Jackson reportedly told his attorney that when Adkins and [Petitioner] told Lee about the Parish brothers shooting, Lee became excited and wanted to do a shooting also. Jackson stated that the group was aware of a party in Emerald Hills so they went there to do a shooting. They saw a group and parked 1/2 block away, Lee walked up to the group and fired several rounds into the crowd and then fled back to the car. Jackson stated that the person killed was named "Gee Wiz." I checked with SDPD homicide detectives and there was a person with the moniker Gee Wiz killed about one hour after the Parish brothers shooting. (Id.)
Petitioner contended in his Traverse that he did not receive a copy of the July 14, 1998 letter until two and one-half years after it was written, and alleged that the failure of the District Attorney to provide him a copy of the letter, and the continued refusal to divulge the evidence upon which the reversal of Lee's conviction is based, is part of a "cover-up" to protect Jackson's credibility because he is an important prosecution witness in other cases. (Traverse at 5-12.) Petitioner contends in his Objections and his Amended Motion to amend that he became aware of the contents of the letter in January 2003, but did not actually receive a copy of the letter until after he filed his federal habeas Petition. (Objections at 3; Pet.'s Amended Mot. to Amend at 4.) However, the contents of the letter were described in a state habeas petition filed on Petitioner's behalf by his attorney on May 10, 2002. (Lodgment No. 12 at 13.) It was averred in that petition that Lee's attorney had conducted an investigation based on the information contained in the July 14, 1998 letter, and had discovered that Jackson was also an informant in another case regarding Skyline gang members, that Jackson was in the witness protection program and unavailable, and that Lee's attorney had obtained declarations from individuals from the Skyline area corroborating Jackson's statement that Adkins had shot the Parish brothers. (Id. at 13-14.) Those declarations are attached to the Traverse as Exhibits B-D.
In the habeas petition filed in the trial court, Petitioner's counsel indicated that, based on the information provided in Lee's habeas petition, he had conducted his own investigation, and that "on or about April 20, 2001, I received a letter from Roy Vinson [an uncle of Adkins], advising me that he had information that petitioner had been wrongly convicted in the shooting of the Parish brothers in case no. SCD 116366. Mr. Vinson advised me that Darnell Jackson was the driver of the vehicle from which Arnold Adkins had shot the Parish brothers." (Id. at 5-6.) Counsel goes on to state that he was contacted by Arnold Johnson, a cousin of Adkins, on June 10, 2001, and that: "Johnson informed me that at the funeral of Arnold Adkins, Darnell Jackson admitted to being the driver of the vehicle used in the shooting of the Parish brothers. Mr. Johnson further informed me that Arnold Adkins had also informed him of that fact in late 1996." (Id. at 6.) Finally, counsel stated that: "Shortly after obtaining the declaration of Arnold Johnson, I was informed of a former girlfriend of Darnell Jackson, one Tatianna Daniels who had made statements to others that Darnell Jackson had personally confessed to his involvement in the shooting of the Parish brothers. [¶] I spent many months attempting to get in contact with 'Tatianna', known to me only by that name." (Id.) Attached to the state habeas petitions are declarations by Vinson, Johnson and Daniels, dated May 6, 2001, July 26, 2001 and May 6, 2002, respectively. (Id. at 19-24.) These are the same declarations relied on by Petitioner in the instant federal Petition. (Pet. Exs. A-C.) However, as discussed below, only the Daniels declaration provides direct evidence that Jackson was the driver.
The trial court issued an order to show cause, and the District Attorney responded with evidence that Vinson, Johnson and Daniels had provided prior inconsistent statements regarding Jackson's involvement in the Parish brothers shooting, were all associated with the same gang to which Petitioner belonged, the Skyline Pirus, and that Vinson and Johnson had been convicted of multiple felonies and were serving life sentences. (Lodgment No. 14.) The appellate court denied relief on the basis that "the 'newly discovered' evidence presented herein is clearly insufficient to support a conclusion that points unerringly to Petitioner's innocence." (Lodgment No. 16, In re Stewart, No. HC 17038, slip op. at 3 (Cal.Sup.Ct. Dec. 17, 2002).) The court found that "the evidence is not credible because of inherent inaccuracies and witness bias. Moreover, it does not completely undermine the prosecution's case or point unerringly to Petitioner's innocence, and the evidence includes inadmissible hearsay." (Id.) Petitioner, acting pro se, constructively filed a habeas petition in the appellate court on January 29, 2003.*fn1 (Lodgment No. 17.) That petition was denied on May 23, 2003, in a four-page order in which the appellate court agreed with the conclusions of the trial judge regarding the reliability of the Vinson, Johnson and Daniels declarations and the inadmissibility of the hearsay contained therein, and concluded that: "The declarations at best raise an issue of credibility without providing a complete defense." (Lodgment No. 18, In re Stewart, No. D041599, slip op. at 3-4 (Cal.App.Ct. May 23, 2003.) Petitioner presented the same claims in a pro se habeas petition constructively filed in the state supreme court on August 31, 2003, which was denied on August 11, 2004 by an order which stated: "Petition for writ of habeas corpus is DENIED." (Lodgment Nos. 19-20.)
Petitioner alleges in claim one of his federal Petition that the state courts erred in denying his state habeas petitions because the new evidence shows that his conviction was based on the unreliable and perjured eyewitness identification testimony of the Parish brothers, that he was therefore convicted in violation of the Fourteenth Amendment, and that habeas relief is available under 28 U.S.C. § 2254(d)(1) because the state court adjudication of his claims was contrary to Williams v. Taylor, 529 U.S. 362, 405-06 (2000). (Pet. at 6-6e.) He contends in claim two that the state courts erred in determining that the Vinson, Johnson and Daniels declarations were not credible without conducting an evidentiary hearing, but identifies no basis for a violation of his federal rights other than indicating that development of the record in this regard, and in particular exposing Jackson as lying about his participation in the shooting in order to maintain his good standing with the District Attorney, goes to the heart of his actual innocence claim. (Pet. at 7-7e.) Petitioner alleges in claim three that he is actually innocent of the crimes for which he stands convicted, and that the newly discovered evidence, which consists not only of the Vinson, Johnson and Daniels declarations showing Jackson was the driver, but also a statement by William Allen impeaching Kevin Brown which was not turned over by the prosecutor, demonstrates that he was convicted in violation of his Fifth and Fourteenth Amendment rights to due process. (Pet. at 8-8d.) Finally, Petitioner alleges in claim four that, in light of the newly discovered evidence, there is insufficient evidence to support his conviction, and the denial of his state habeas petition was therefore contrary to clearly established United States Supreme Court authority. (Pet. at 9-9c.)
Respondent contends the Petition is barred by the one-year statute of limitations and that the claims do not present federal questions. (Memorandum of Points and Authorities in Support of Answer at 11-19.) Respondent argues that the state court adjudication of the claims could not be contrary to, or involve an unreasonable application of, clearly established federal law, because the United States Supreme Court has never established a rule requiring states to provide an evidentiary hearing or a new trial based on newly discovered evidence. (Id. at 19-25.)
Petitioner replies in his Traverse that the prosecution committed Brady error and suborned perjury by not disclosing to Petitioner the information which was given to Lee's attorney, which the prosecution apparently became aware of while Petitioner's direct appeal was pending, and argues that any potential untimeliness here was caused by the state preventing him from interviewing Jackson or failing to disclose Jackson's statements. (Traverse at 1-5.) Petitioner also argues that his claims do in fact present federal questions. (Id. at 5-22.)
The Magistrate Judge found that the latest the one-year statute of limitations began to run was when Petitioner became aware of the newly discovered evidence, either when Lee was granted habeas relief on August 31, 2000, or at the latest when Petitioner's counsel was contacted by Vinson on April 20, 2001 and told that Jackson was the driver, and that the instant Petition, constructively filed on May 15, 2005, was untimely. (R&R at 8-14.) The Magistrate Judge found that statutory tolling was unavailable for the time Petitioner was pursuing one complete round of state post-conviction collateral review from May 14, 2002 until August 11, 2004, because the one-year limitations period had already expired prior to commencement of the state habeas proceedings. (R&R at 9-12.) The Magistrate Judge also found that equitable tolling was not available because any impediment to the filing of the state habeas petition ended when Petitioner became aware of the newly discovered evidence as late as April 20, 2001, and that Petitioner had not made a sufficient showing of actual innocence so as to avoid operation of the statute of limitations. (R&R at 12-14.) Finally, the Magistrate Judge found, in the alternative, that Petitioner's claims did not present federal questions, with the possible exception of his actual innocence claim, but that Petitioner had failed to establish that he is actually innocent, and had in any case failed to establish that the adjudication of any of his claims by the state courts was contrary to, or involved an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of the facts. (R&R at 14-19.)
Petitioner objects to the findings of the Magistrate Judge regarding the commencement of the statute of limitations, objects to the finding that he has failed to state a federal claim, and objects to the standard applied to his actual innocence claim. (Objections at 1-11.) He also seeks leave to amend his Petition to clearly state the federal basis for his claims (Pet.'s Amended Mot. to Amend at 1-9), and seeks ...