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Chestang v. Sisto

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 18, 2009

DANIEL K. CHESTANG, PETITIONER,
v.
D.K. SISTO, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Introduction

Petitioner, a state prisoner proceeding with retained counsel, has filed a petition pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's August 8, 2008, motion to dismiss, which came on for hearing on April 2, 2009, with David A. Eldridge representing respondent and Randall Ensminger appearing for petitioner.*fn1 This case currently proceeds upon a second amended petition filed on April 18, 2008.*fn2 Petitioner pled guilty to two counts of murder (Cal. Penal Code § 187), admitted to use of firearm enhancements (Cal. Penal Code § 12022.5) and was sentenced in Sacramento County Superior Court, on March 18, 1994, to a term of 60 years to life, which included a total of a ten-year determinate sentence for the enhancements to be followed by two consecutive indeterminate 25-year-to-life terms. Second Amended Petition (SAP), p. 2; Motion to dismiss (MTD), p. 1, citing Lodged Doc. 1. Petitioner challenges his sentence upon the following grounds: 1) illegal sentence; 2) ineffective assistance of counsel; 3) conviction arising from unlawfully induced or involuntary guilty plea, made without understanding of the nature of the charge and the plea consequences. SAP, pp. 6-19.

Motion to Dismiss

Pending before the court is respondent's motion to dismiss the petition, alleging that the petition was not filed timely. The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1):

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

As noted, petitioner was sentenced to a term of 60 years to life on his guilty plea and admission of sentencing enhancements on March 18, 1994. Respondent's Lodged Doc. 1.

Since petitioner did not appeal,*fn3 his conviction became final 60 days later, on May 17, 1994.*fn4 See Cal. R. Ct. 8.308(a) (formerly Cal. R. Ct. 30.1). As respondent observes, petitioner's conviction became final before April 24, 1996, the effective date of the AEDPA statute of limitations; therefore, petitioner's federal petition was due one year from the effective date of the implementation of the statutory limitation period, and, absent any applicable tolling, would have been due by April 24, 1997. MTD, p. 4,*fn5 citing, inter alia, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999); Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

There is no dispute as to when the nine post-conviction state court habeas petitions were filed: the first petition, filed in the Sacramento County Superior Court, was not filed until May 20, 2004, and was denied on June 23, 2004. The second petition was filed in the same court on July 28, 2004, and denied on September 17, 2004; on October 15, 2004, petitioner filed a motion for reconsideration in the Sacramento County Superior Court which was denied on Oct. 27, 2004; petitioner also filed a motion for reconsideration on Nov. 15, 2004, which was denied on the same day. The third petition was filed on Oct. 18, 2004, in the Third District Court of Appeal, and denied on Oct. 21, 2004. The fourth petition was filed in Sacramento County Superior Court on June 6, 2005, and denied on July 25, 2005. The fifth petition was filed on Aug. 22, 2005, in the Third District Court of Appeal, and denied on Aug. 25, 2005. The sixth habeas petition was filed in Sacramento County Superior Court on Nov. 7, 2005, and denied on Dec. 13, 2005. The seventh state court petition was also filed in the Sacramento County Superior Court on Feb. 8, 2006, and was denied on March 17, 2006; petitioner's April 11, 2006, motion for reconsideration in the same court was denied on May 4, 2006. The eighth petition was filed in the Third District Court of Appeal on July 31, 2006, and denied on Aug. 3, 2006. The ninth and final petition was filed in the California Supreme Court on Sept. 15, 2006, and denied on March 21, 2007. MTD, pp. 2-3, Lodged Docs. 2-25 ; SAP, pp. 18-19. The court will find that the instant action commenced on June 10, 2007, by application of the mailbox rule,*fn6 even though petitioner's initial pro se filing was an inapposite motion for relief from judgment. See Order, filed on June 25, 2007 (docket # 3).

28 U.S.C. § 2254(d)(2) provides that 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 shall not be counted toward any period of limitation under this section. However, as respondent notes (MTD, p. 6), the filing of a state collateral action following expiration of the AEDPA limitations period cannot revive the limitations period or toll it under § 2254(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001). Thus, on the face of it, the instant filing due by April 24, 1997, but not filed until June 10, 2007, would appear to be untimely by some ten years. Although unnecessary on this showing, respondent makes an alternate argument as to why the state habeas petitions could not have tolled the AEDPA statute. MTD, p. 5. He contends that the first and sixth through ninth petitions were determined to be untimely in the state courts. The first and ninth petitions were denied by citation to, inter alia, In re Robbins, 18 Cal.4th 770, 780 [,77 Cal. Rptr. 153] (1998). Lodged Docs. 3, 25. The sixth and seventh petitions were found untimely filed by the Sacramento County Superior Court. Lodged Docs. 17, 19. Thus, as respondent argues, these petitions, having been expressly found to have been filed untimely, cannot have been "properly filed" pursuant to § 2244(d)(2). MTD, p. 5, citing Pace v. DiGuglielmo, 544 U.S. 408, 414, 417, 12 S.Ct. 1807, 1812, 1814 (2005) (holding "[w]hen a post-conviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)," expressly finding that a state court petition rejected as untimely is not "properly filed" under AEDPA statute tolling provisions). Respondent argues that while the eighth petition was denied without comment or citation (Lodged Doc. 23), it should not be presumed that the prior state court findings of untimeliness were thereby disregarded, citing Ylst v. Nunnemaker, 501 U.S. 797, 803-806, 111 S.Ct. 2590 (1991), for the proposition that the later reviewing courts did not silently disregard the last reasoned opinion that the claim was procedurally defective. Thus, it is appropriate to "look through" unexplained orders "to the last reasoned decision...." Id., at 804, 111 S.Ct. 2590.

Respondent is correct on the law in his alternate argument. Pace, supra, at 417, 125 S.Ct. at 1814 (state "time limits no matter their form, are 'filing' conditions" ); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) ("[b]ecause the California courts dismissed Bonner's petition as untimely, his petition was not 'properly filed' under AEDPA"). However, as noted, it is unnecessary to invoke the argument, given that, on the face of it, petitioner permitted the AEDPA statutory period to expire by more than seven years before even commencing the filing of his state court petitions.

Equitable Tolling/Delayed Trigger for Commencemnet of Limitations Period/Actual Innocence

Apparently anticipating the arguments for untimeliness, petitioner within the second amended petition, asserts that his petition includes a claim of factual innocence based on newly discovered evidence -- a statement by the co-defendant -- resulting in a miscarriage of justice and that he has been diligently pursuing state court relief since obtaining the evidence and is thus entitled to equitable tolling from the date of his first state court petition, filed on May 20, 2004.*fn7 In addition, petitioner avers that he did not learn of the defect in his sentence related to a psychological report by Dr. Shawn Johnston until he learned of his potential life sentence on November 13, 2003. Thus, he claims that the first factual predicate of his claim did not become known to him until November of 2003, the second factual predicate involved obtaining the June 13, 2004 statement of culpability and exoneration from the co-defendant; and the third factual predicate, learned some time prior to November 15, 2004, when he filed his motion for reconsideration, was petitioner's discovery of the sentencing judge's illegal sentence resulting from the judge's rejection of Dr. Johnston's psychological report of petitioner. SAP, 14-15. Therefore, petitioner, in addition to seeking equitable tolling, appears to seek a later trigger date for the commencement of the statutory limitation period under § 2244(d)(1)(D), in asserting that he was unaware of even the first factual predicate of his claims until November of 2003.

The court will analyze the above assertions below. However, prior to that analysis, it is necessary to emphasize that not every factual assertion, or dispute, will require an evidentiary hearing. The Supreme Court has recently opined on the standards for granting an evidentiary hearing in Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1939-1940 (2007), reversing Landrigan v. Schriro, 441 F.3d 638, 650 (9th Cir. 2006) (en banc). Schriro first described the familiar test for granting an evidentiary hearing: that if the factual allegations were to be proved, petitioner would be entitled to relief. See Alberni v. McDaniel, 458 F.3d 860, 873 (9th Cir. 2006).*fn8 These standards are easily applied to factual issues involving a dispositive procedural issue as well. That is, do petitioner's allegations, if proven, give rise to equitable tolling or a later commencement of the limitations period; if so, petitioner would be entitled to an evidentiary hearing.

However, in determining whether relief could be granted, the federal court must apply the AEDPA deferential standards to legal and factual questions necessarily reached by the state courts which might obviate the need for an evidentiary hearing. Schiro, 127 S.Ct. at 1939-40. If the state court had made factual findings on the issue at bar, no evidentiary hearing could be held unless petitioner's proffer would constitute clear and convincing evidence. Importantly, if the record refuted the applicant's allegations, i.e., petitioner was making allegations at odds with the established facts of the record, he would not be permitted an evidentiary hearing unless such new facts would clearly and convincingly rebut the record. Generally phrased allegations, or the failure to submit a proffer of available, specific proof will not clearly and convincingly rebut the record. Of course, if a lower state court is the court which issued a reasoned decision, the federal courts look through silent denials and assume the reasoning of the lower court is the reasoning of all courts. Medley v. Runnels, 506 F.3d 857, 862-863 (9th Cir. 2007), citing Ylst v. Nunnemaker, 501 U.S. 804-06, 111 S.Ct. 2590 (1991).

The following discussion demonstrates that the factual record in this case clearly refutes petitioner's latter day allegations, and an evidentiary hearing is not warranted.

Sentencing Allegation

The writ of error coram nobis filed by petitioner, on May 5, 1995, that was evidently rejected pending his use of the appropriate form (see footnote 3), clearly states that petitioner was sentenced to two consecutive terms of 25 years to life, enhanced by 10 years, "the aggregate term being 60 years to life affixed." Lodged Doc. 30 (p. 2). In his opposition, petitioner declares that he should be granted equitable tolling from and after the date of this "rejected appeal," which "was attempted to be filed before the statute of limitations even had begun to run" even though "he had nothing to do with the actual preparation" of the document, only signing it after a jailhouse lawyer had prepared it.*fn9 Petitioner's Declaration in Opp., ¶ 5. At oral argument, petitioner's counsel again maintained the 1995 petition was prepared by a jailhouse lawyer and petitioner forgot it had ever been done. Moreover, petitioner maintains that he was "only 18 at the time and was suffering from untreated schizophrenia, was in shock from [his] imprisonment and not fully understanding what had happened to [him]."*fn10 Ptnr's Dec. in Opp., ¶ 5. However, petitioner had multiple opportunities both before and after May of 1995 and prior to May of 2004, when he filed his first state court petition, to appreciate the magnitude of his sentence, beginning with the occasion on which he entered his change of plea on December 9, 1993 (Lodged Doc. 32, p. 5: 11-21),*fn11 and later at the time of his judgment and sentencing on March 18, 1994, before a different judge (Lodged Doc. 33, pp. 23-26).*fn12 As the undersigned noted at the hearing on this motion, the sentencing judge was vehement in expressing his desire for the sentence to be lengthy. Moreover, the record indicates that the judge told petitioner explicitly when sentencing him:

It's my desire that by the time you are eligible for parole I will be nothing more than what I hope is a warm feeling in the hearts and minds of my children and grandchildren.

Lodged Doc. 33, p. 24:23-26.

Should that sentiment have left even the slightest doubt as to the judge's intent in imposing petitioner's sentence, it would have been removed by his conclusion at the sentencing hearing for both petitioner and his co-defendant:

If you are ever placed on parole on this case it will be for a period of life. And if you violate any provision of your parole, you could be returned back to prison for life.

However, it's my desire that you never be granted parole. I believe you should spend the rest of your natural lives in prison and die in prison.

Id., at 26:4-9.

Petitioner was a high school graduate, as the court noted at the hearing. Lodged Doc 27. In addition to that, there is ample evidence in the record submitted by respondent to demonstrate that legal status summary sheets were prepared from the inception of his imprisonment, indicating that he was sentenced to a term of 60 years to life, despite petitioner's representation that he cannot recall any intake report dated April 28, 1994, or any intake audits during prison transfers where his life sentence was discussed, maintaining specifically that he cannot recall ever having seen the May 16, 1994, Legal Status Summary Report, setting forth his life sentence. Lodged Docs. 28, 29, 35; petitioner's Declaration in Opp., ¶¶ 7-8. Even if, as his counsel maintained at the hearing, petitioner believed his sentence translated to 50 years at hard labor, or in the alternative, as petitioner states in a declaration appended to the opposition (¶ 9), that he believed that so long as he "had no other problems" in prison, his 60-year sentence would be halved by good time credits, there is simply no realistic possibility that petitioner could have failed to understand, virtually from the outset, the sentence he had received absent a willful decision simply not to acknowledge reality or evidence of a completely delusional state of mind, for which evidence is lacking. The record also includes a copy of a letter, dated April 10, 1995, apparently from petitioner to his defense counsel, wherein petitioner states, in part, the following:

The goal of my plea was for the reciprocal benefit of 60 years, and not to the false enchantment [sic] of two terms of twenty-five years to life....The sentence rendered 2 (two) life terms which I was unaware of before the plea of guilty.

Lodged Doc. 26.

This appears to be a clear indication that petitioner was fully cognizant of the sentence imposed upon him by no later than spring of 1995.*fn13 In order to avail himself of the commencement date of § 2244(d)(1)(D), petitioner must have exercised due diligence in determining the factual predicate of his claim; a claim that petitioner only discovered the true significance of his 1994 sentence in November of 2003, while conducting his own research in a prison law library does not demonstrate such due diligence. The superior court's assertion made on June 23, 2004, in denying the May 20, 2004, petition wherein petitioner seeks to convince that court that he had only just discovered that he had received a life sentence in 1994 based on a November 13, 2003, prison document, is self-evident; noting the document, the superior court found that it "could not have been the first notice petitioner ever received that he is serving a life term." Lodged Doc. 3. Any other conclusion defies logic. To the extent that any of petitioner's claims rest on this court's finding timeliness due to his belated discovery of the sentence imposed upon him, delayed by almost ten years after the sentence was imposed, such claims cannot be found timely under § 2244(d)(1)(D), nor is any showing of equitable tolling thereby warranted.

In Calderon v. U.S. District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled on other grounds, Calderon v. U.S. District Court for Cent. Dist. of CA. (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc), itself abrogated by Woodford v. Garceau, 538 U.S.202, 123 S.Ct. 1398 (2003), the Ninth Circuit found that the statute of limitations could be equitably tolled if extraordinary circumstances beyond a prisoner's control made it impossible to file the petition on time. "In addition, '[w]hen external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling may be appropriate.'" Lott v. Mueller, 304 F.3d 918, 922 (9th Cir. 2002), quoting Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).

Equitable tolling will not be available in most cases because tolling should only be granted if extraordinary circumstances beyond a prisoner's control make it impossible for him to file a petition on time. Beeler, 128 F.3d at 1288-89. As held in Beeler, "[w]e have no doubt that district judges will take seriously Congress's desire to accelerate the federal habeas process, and will only authorize extensions when this high hurdle is surmounted." 128 F.3d at 1289. "Mere excusable neglect" is insufficient as an extraordinary circumstance. Miller v. New Jersey Dept. of Corrections, 145 F.3d 616, 619 (3rd Cir. 1998). Moreover, ignorance of the law does not constitute such extraordinary circumstances. See Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986).

In the Calderon (Beeler) case, the Court of Appeals held that the district court properly found equitable tolling to allow Beeler more time to file his petition. Beeler's lead counsel withdrew after accepting employment in another state, and much of the work he left behind was not usable by replacement counsel -- a turn of events over which the court found Beeler had no control. The Court of Appeals held that the district court properly found these were "extraordinary circumstances" sufficient to toll the statute of limitations.*fn14 The Ninth Circuit also found extraordinary circumstances in Calderon v. U.S. Dist. Ct. (Kelly), supra, 163 F.3d 530. The three reasons given which independently justified tolling were: a district court stay which prevented petitioner's counsel from filing a habeas petition, mental incompetency until a reasonable time after the court makes a competency determination, and the fact that petitioner did at one time have timely habeas proceedings pending which were mistakenly dismissed, not as a result of any doing by petitioner. Id. at 541-42. See also Corjasso v. Ayers, 278 F.3d 874 (9th Cir. 2002) (clerk's unjustified rejection of a petition justified partial tolling); Miles v. Prunty, 187 F.3d at 1107 (delay by prison in withdrawing funds from prisoner's trust account, preparing and mailing filing fee were circumstances beyond his control, qualifying him for equitable tolling); Stillman v. Lamarque, 319 F.3d 1199, 1202-03 (9th Cir. 2003) (equitable tolling permitted where litigation coordinator broke a promise to petitioner's counsel to return a signed petition for timely filing); Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003) (sufficiently egregious misconduct by counsel, such as wholly deficient performance, may justify equitable tolling).

"Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814; Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (a habeas petitioner bears the burden of proving that equitable tolling should apply to avoid dismissal of an untimely petition). "Equitable tolling is unavailable in most cases," and is only appropriate "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miranda, supra, at 1066 (internal quotations/citations omitted [emphasis added in Miranda]). A petitioner must reach a "very high" threshold "to trigger equitable tolling [under AEDPA]...lest the exceptions swallow the rule." Id.

Moreover, as noted above, ignorance of the law has not been found to warrant equitable tolling. Hughes v. Idaho State Bd. of Corrections, supra, at 909. In addition, in U.S. v. Van Poyck, 980 F. Supp. 1108, 1110-11(C.D. Cal. 1997), the court found that a petitioner's circumstances were not extraordinary in the following circumstances: inability to obtain transcripts from court reporters, and general prison lockdowns preventing the prisoner's access to the library and a typewriter which were necessary to his motion. See also Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (reliance on incompetence of jailhouse lawyer not sufficient to justify cause to excuse procedural default); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (prisoner's unfamiliarity of law did not toll statute); Eisermann v. Penarosa, 33 F.Supp.2d 1269, 1273 (D.Haw. 1999) (lack of legal expertise does not qualify prisoner for equitable tolling); Henderson v. Johnson, 1 F.Supp.2d 650, 656 (N.D. Tex. 1998) (same); Fadayiro v. United States, 30 F.Supp.2d 772, 779-80 (D.N.J. 1998) (delay in receipt of transcripts does not justify equitable tolling). Nor has the undersigned ever been persuaded that a petitioner's reliance on a jailhouse lawyer can have been contemplated as coming within the holding of Spitsyn v. Moore, supra.

Petitioner's representation that he was not really aware of the actual length of his sentence until he had spent a decade in prison simply does not warrant equitable tolling, given, inter alia, the fact that he had pled guilty to two first degree murders, his presence at his sentencing, the legal status summary sheets prepared, the language in the 1995 coram nobis petition he attempted to file. The record clearly refutes the latter day allegations. Moreover, the allegations themselves are insufficient. In simply asserting that he did not understand his own abortive coram nobis petition, or that he so belatedly discovered the significance of his sentence, petitioner makes a deficient showing to prove entitlement to equitable tolling. These do not rise to the level of being "extraordinary circumstances" beyond petitioner's control in an equitable tolling context, but appear, instead, to be attributable, at most, to a lack of diligence. See, e.g., Lott v. Mueller, supra, at 922.

Actually Innocent of First Degree Murder

Nor is petitioner entitled either to the later trigger date of § 2244(d)(1)(D), or to equitable tolling, for what petitioner characterizes as the third factual predicate for his claims, relating to the sentencing judge's rejection of Dr. Johnston's psychological report of petitioner, only learned at some vague period prior to November 15, 2004, according to petitioner. It is plain that at the judgment and sentencing hearing, at which petitioner was present, the judge discusses Dr. Johnston's psychological evaluation, the testing administered upon petitioner, relates Dr. Johnston's conclusion and the judge's own rejection of that conclusion.*fn15

Petitioner's putative schizophrenia, while relied on as part of an underlying claim, does not appear to be an argument for equitable tolling on which petitioner significantly relies, although petitioner does contend that Dr. Johnston prognosticated that petitioner may well suffer from paranoid schizophrenia and that while in prison petitioner has received no mental health treatment. Of course, this is a double-edged sword: while petitioner argues that he has not received the mental health treatment he needs based on Dr. Johnston's analysis, respondent maintains this simply signifies that prison officials have determined that petitioner is not in need of any such treatment program. Petitioner points out that the only prison mental health treatment he has received has come in the form of group meetings which have resulted from his request to be enrolled in the CCCMS*fn16 program while in prison. Ptn. Dec. in Opp., ¶ 4. Petitioner, arguing the merits of his claim that the plea was inappropriately accepted because the only professional opinion was that of Dr. Johnston opining petitioner's alleged paranoid schizophrenia with no professional opinion in opposition before the court, appears to conflate the requisite state of mental health for petitioner's plea to be accepted with that of competency to stand trial. Opp., pp. 2, 11-12. In support of his claim that the trial court should not have accepted petitioner's plea, petitioner cites People v. Harvey, 151 Cal. App.3d 660, 198 Cal. Rptr. 858 (1984), wherein the state appellate court found it to be an abuse of discretion for the trial court to deny the defendant's motion to withdraw the guilty plea where the defendant had not been advised by her counsel before entering the plea that a psychiatrist's professional opinion was that defendant was not mentally capable of "harboring malice, premeditating or deliberating at the time of the killing," a report of which the defendant was evidently unaware until after her sentence and confinement. People v. Harvey, supra, 151 Cal. App.3d at 665-666. Petitioner particularly emphasizes the following statement:

Even assuming defendant did have knowledge of the consequences of her plea, it is clear from the record that she did not have knowledge of a defense, not only potentially meritorious, but absolutely critical to her case. [] Thus we conclude that, under all the circumstances of this case, the trial court abused its discretion in denying defendant's motion to withdraw her guilty plea.

Opp., pp. 14-15, quoting People v. Harvey, supra, 151 Cal. App.3d at 670-671.

The case appears to be inapposite insofar as a state court abuse of discretion, on the face of it, would not appear to implicate a federal constitutional guarantee, nor is the context analagous, where the defendant in Harvey evidently made a motion to withdraw the plea, something that did not occur here, and timeliness was not at issue. Nor does the report by Dr. Johnston, as the court stated, as pointedly support the premise as does that of the psychiatrist in Harvey, that petitioner did not have the psychological capacity to commit the murder offense with the requisite intent, where here, according to the sentencing judge, Johnston's opinion as to petitioner was that the "commission of the instant offense was premeditated but not deliberated," (Lodged Doc. 1, p. 22), a parsing of the required elements so labored as to render its meaning obscure to the point of meaninglessness. But petitioner's fundamental difficulty here is that he seeks to reach the merits of his petition without ever having demonstrated a sufficient basis for this court to consider the petition timely. That is, even if petitioner had a colorable ground with regard to either a claim that the court should have obtained a professional, countervailing opinion to that of Dr. Johnston or that counsel for petitioner was ineffective in not fully informing petitioner of the contents of Dr. Johnston's report, petitioner offers far too little by way of support as to why the court should find petitioner timely in raising these issues for the first time some ten years beyond the date of acceptance of the plea and entry of judgment, particularly as petitioner admits that he knew "prior to sentencing," that the psychologist's report had "included the opinion that I was schizophrenic and as a result incapable of deliberation," but that he did not understand the legal significance of this opinion, nor did his defense attorney explain it to him. Ptnr's Dec. in Opp., ¶ 3. To trigger the later date, it is not necessary that petitioner understand the legal significance, but only that he is aware of the factual predicate of any claim. Nor does petitioner make the showing required to demonstrate the impediment to earlier filing or the diligence required to show his is a case of an extraordinary circumstance entitling him to equitable tolling. "Where a habeas petitioner's mental incompetency in fact caused him to fail to meet his AEDPA filing deadline, his delay was caused by an 'extraordinary circumstance beyond [his] control,' and the deadline should be equitably tolled." Laws v. LaMarque, 351 F.3d 919, 923 (9th Cir. 2003); see also Calderon v. U.S. Dist. Court for Cent. Dist. Of Cal. (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (mental incompetency considered an extraordinary circumstance beyond the prisoner's control) (overruled on other grounds by Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398 (2003)). A petitioner's mental illness tolls the limitations period only if "the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them." Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996).

The Ninth Circuit has noted that "[d]etermining whether equitable tolling is necessary is a 'fact-specific inquiry,'" Spitsyn, 345 F.3d at 799, but petitioner provides nothing by way of any affidavit by a medical professional or any medical record to support any claim that he was impeded by his mental health condition from filing his petition much earlier. The only reference to mental health issues is with respect to the claim that the trial court violated due process in accepting the plea to first degree murder while rejecting the conclusions of the only psychological evaluation of petitioner in the record without ordering a further or independent evaluation and with regard to the IAC claim against trial counsel for failing to object. At the sentencing hearing, the judge references Dr. Shawn Johnston's twelve-page psychological evaluation, dated November 8, 1993,*fn17 and indicates that it was received and considered, noting that in the Rorshach Ink Blot Test, the doctor concluded that either petitioner (then defendant) "was being very defensive or refusing to cooperate with the test, or that possibly the test results show some type of emotional disturbance" and that in the Minnesota Multi-Phasic Personality Inventory (MMPI), he came to two different conclusions, "that the tests either show that he attempted to feign some type of an illness, was malingering, or that he suffers from a schizophrenia or mania," opting for and adopting the latter conclusion and determining that petitioner "may not have been able to deliberate the commission of the instant offense," finding somehow that petitioner had "premeditated but not deliberated" the offense. Lodged Doc. 1, pp. 3, 17, 22. The sentencing judge "strongly disagree[s]" with that conclusion which he characterizes as speculative at best based on the tests given, finding "ample evidence in the record to show premeditation, deliberation, malice aforethought on the part of both defendants." Lodged Doc. 1, pp. 22-23. Both petitioner and respondent argue for their separate positions, as noted above, that petitioner has never received mental health treatment based on the diagnosis of schizophrenia since being incarcerated, each seeking to show that petitioner, who has indicated that he signed himself up for CCCMS, has either never received the treatment he needs or has never been diagnosed as schizophrenic in prison, respectively. Respondent's inclusion of petitioner's prison work history undermines any representation that mental health issues may have impeded petitioner. In 1996, petitioner was assigned work as a dining porter; in 1997, petitioner was assigned work as a photographer/camera man; he progressed from C's to B's and A's in education progress reports in quarters from 2000-2002, in vocational, mostly electronic- related technical courses. Lodged Doc. 34.

Petitioner is not entitled to equitable tolling, or a later commencement of the limitations period, for the purpose of attempting to prove that he is actually innocent of first degree murder. He simply had early access to the information he would now posit as proof of his innocence, and no justifiable reason for not asserting this claim in a timely fashion. To the extent that petitioner contends that a claim of actual innocence, even if partial, will, on its own, always trump the AEDPA statute of limitations, that claim is rejected for the reasons set forth below.

Actually Innocent of Murder Per Se

Petitioner relies on Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851 (1995), although he acknowledges that that case involved a jury verdict as opposed to a guilty plea. Petitioner maintains that he is actually innocent of the first-degree murders to which he entered a plea based on the co-defendant's belated statement, following his (the co-defendant's) religious conversion, that it was he who was responsible for shooting the victims. The standard under Schlup, at 329, 115 S.Ct. at 868, is not met by "a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty." Petitioner maintains that he should proceed under Schlup because he has been subjected to constitutional violations that have resulted in his conviction even though he is actually innocent, at least of first degree murder, and that in light of the new evidence no reasonable juror would have convicted him. Opp., pp. 1-2. Of course, as noted, in this instance petitioner essentially convicted himself.

Respondent argues that the gateway provided by Schlup is a very narrow procedural one not applicable in the AEDPA statute of limitations context. Reply, p. 4. Schlup, supra, at 315, 115 S.Ct. 861, a capital case, involved the applicable standard for overcoming a procedural bar, the claim of actual innocence itself not being a constitutional claim, but rather "a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits [internal quotation omitted]." Respondent is correct that neither the Supreme Court nor the Ninth Circuit has yet reached the conclusion that the strenuous Schlup "fundamental miscarriage of justice standard" is adequate to override or even to be applied to the statute of limitations set forth in the AEDPA statute. Reply, pp. 3-4, citing Majoy v. Roe, 296 F.3d 770, 775-76 (9th Cir. 2002).

Majoy does not answer the question, should petitioner fall within that "narrow class implicating a fundamental miscarriage of justice[,] ....whether surviving the rigors of this gateway has the consequence of overriding AEDPA's one-year statute of limitation...." Majoy v. Roe, 296 F.3d at 776. Indeed, the Majoy court expressly found that that question had not been reached either in the Ninth Circuit or by the U.S. Supreme Court, id., and that it was premature for the Majoy court to decide the legal issue unless and until the district court found that its petitioner could actually pass through the Schlup gateway. The district court was to have first crack at the legal issue as well. Thus, the undersigned finds this case in precisely the same posture as Majoy at the time of remand.*fn18

The U.S. Supreme Court has yet to finally determine that actual innocence itself implicates a federal constitutional right entitling a petitioner to release upon proof of same. See, District Attorney's Office for Third Judicial District v. Osborne, ___ U.S.___, 129 S.Ct. 2308, 2321-2322 (Jun. 18, 2009), where the high court notes that it has "assumed, arguendo, that it exists while also noting the difficult questions such a right would pose and the high standard any claimant would have to meet," citing, inter alia, House v. Bell, 547 U.S. [518,] 554-555, 126 S.Ct. 2064 [, 2086-87 (2006)]; Herrera v. Collins, 506 U.S. [390,] 398-417, 113 S.Ct. 853[, 869-70) (1993)].

The Ninth Circuit has "noted, however, a majority of the Justices in Herrera would have supported a claim of free-standing actual innocence." Jackson v. Calderon, 211 F.3d 1148, 1165 (9th Cir. 2000), citing Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997), cert. denied, 523 U.S. 1133, 118 S.Ct. 1827 [](1998). In "asserting a freestanding innocence claim....," a petitioner "must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Jackson, supra, at 1165, quoting Carriger, at 476. Of course, all of these were cases wherein the petitioner had been tried and convicted and, in all but one, sentenced to death,*fn19 not as here, a petitioner who had pled guilty (with the exception of District Attorney's Office, supra, a § 1983 action wherein it was found that an individual, duly convicted at trial with his conviction and sentenced affirmed on appeal, did not have a federal substantive due process right to have state DNA evidence tested to prove his innocence).*fn20

This court has at times noted in the context of the equitable tolling inquiry that the limitations period may be equitably tolled, or simply not applied, in a situation where the habeas petitioner makes a colorable demonstration of actual innocence. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (intimating that the AEDPA limitations period may be unconstitutional if a claim of actual innocence were at stake); United States v. Zuno-Acre, 25 F. Supp. 2d 1087, 1099-1100 (C.D.Cal. 1998) (holding that there is a "miscarriage of justice gateway" to non-application of the AEDPA limitations period). Some courts have suggested that dismissal of actual or legal innocence claims on grounds that they are barred by the statute of limitations violates the Suspension Clause (U.S. Const. art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus may not be suspended, unless when in Case of Rebellion or Invasion the public Safety may require it.")). See Rodriguez v. Artuz, 990 F.Supp. 275, 283 (S.D.N.Y. 1998), affirmed, 161 F.3d 763 (2nd Cir. 1998) ("where no claim of actual or legal innocence was raised, as long as the procedural limits on habeas leave petitioners with some reasonable opportunity to have their claims heard on the merits...[there is no] suspension of the writ.") See also Johnson v. Knowles, 541 F.3d 933 (9th Cir. 2008), where the parties assumed the applicability of Schlup to a statute of limitations issue, and so therefore did the court.

However, upon analysis of the AEDPA statute itself, the undersigned concludes that actual innocence does not provide an exemption to bringing claims in a diligent fashion.

The First Circuit has opined, in David v. Hall, 318 F.3d 343, 347 (1st Cir. 2003): Nothing is changed here by David's claim of actual innocence, a claim itself derived from his mistaken-colloquy argument. In general, defendants who may be innocent are constrained by the same explicit statutory or rule-based deadlines as those against whom the evidence is overwhelming: pre-trial motions must be filed on time, timely appeals must be lodged, and habeas claims must conform to AEDPA. In particular, the statutory one-year limit on filing initial habeas petitions is not mitigated by any statutory exception for actual innocence even though Congress clearly knew how to provide such an escape hatch.

The court is persuaded by the David rationale that claims of actual innocence are required to be brought diligently the same as any other claim. See also, Araujo v. Chandler, 435 F.3d 678, 681 (7th Cir. 2005) (finding "actual innocence" claim must fit within the provisions of § 2244(d)(1)(D) to be timely and that petitioner did not exercise due diligence in bringing facts of claim to federal court)*fn21 ; Flanders v. Graves, 299 F.3d 974, 978 (8th Cir. 2002) (while not holding that actual innocence is irrelevant in the equitable tolling context, finding that a petitioner would, at a minimum, have to show diligence); Cousin v. Jenning, 310 F.3d 843, 849 (5th Cir. 2002) (finding no explicit exemption for actual innocence claim under § 2244(d) and such claims relevant to timeliness only if they warrant equitable tolling of the limitations period); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000) ("actual innocence claim ...does not constitute a 'rare and exceptional circumstance....'").

Indeed, the AEDPA statute of limitations does not even commence to run until the factual predicate for the claim could have become known with reasonable diligence. 28 U.S.C. § 2244(d)(1)(D). It becomes absurd to think that one who knows, or should know, of a claim for actual innocence may pocket the claim, and only spring it years or decades after the fact. In essence, a suspension or ignoring of the AEDPA statute of limitations is not necessary for claims of actual innocence. If petitioner had knowledge of the factual predicate of his claim of actual innocence years ago, as he must have if it is true, or should have had such knowledge years ago, his lack of diligence precludes him (and should preclude him) from proceeding at present. Congress anticipated newly discovered factual predicates, including those for actual innocence claims, and provided for such in the AEDPA limitations statute itself.

Thus, in a situation, for example, where DNA evidence is newly discovered, or a new testing procedure is discovered, which was not available at the time of trial, or even initial post-trial proceedings, and which would prove actual innocence, the AEDPA limitations period would not start to run until the discovery of such evidence or procedure. But there is no reason to allow a petitioner to sit on such evidence after discovery until such time as petitioner feels the time is right to bring it.

In reviewing the facts here, petitioner must have been aware, if it is true, that he knew all along that he had confessed to a crime he did not commit, and that his guilty plea was erroneous, petitioner going so far as to inform the judge on guilty plea colloquy that he indeed committed the crime. Yet, petitioner did nothing for years to rectify the matter. Petitioner's co-defendant's belated "I'll now take the blame" declaration, should have been actively sought long before the time it just happened to come into existence because of a purported religious impetus. The foregoing is not a situation where the presently asserted factual predicate was unknown to petitioner, or legally unavailable, at the time he inculpated himself.

Petitioner claims that he was likely suffering from schizophrenia at the time of the shootings, per the "uncontroverted opinion" of Dr. Johnston, which "would be a likely explanation for the misinformation that appears to have been spread regarding the shooting in the immediate hours and days thereafter...." Supp. Resp. in Opp., p. 3. That is, petitioner attributes most of the misinformation as having its primary source in the co-defendant and seeks to ascribe petitioner's own self-incrimination to the alleged schizophrenia from which petitioner may have suffered at or around that time. Even if colorable, and the state trial court and this court has found it not to be so, none of this explains petitioner's subsequent extended dilatoriness.

Petitioner claims that he moved forward diligently with his claim of actual innocence once he obtained his co-defendant's "confession." Opp., p. 18. He also posits that it was only upon a chance meeting with his co-defendant that he learned of his conversion to Islam and that therefore a truthful statement could be obtained, something he could not otherwise have known. Ptnr's Dec. in Opp., ¶ 10. Further, he maintains that he could not simply contact another inmate without institutional approval, and that contacting a former co-defendant would be even more problematic. Id. Respondent submits a copy of the CDCR policy regarding correspondence between inmates. Lodged Doc. 36. To have initiated the process might have been an onerous one for petitioner, but despite his avowed innocence, petitioner does not indicate that he ever explored the process before his fortuitous meeting with Inmate Mann. If petitioner was aware, as he must have been if it is true, that he did not know his co-defendant had a gun on the crucial night and that he (petitioner) was not the gunman in the fatal shootings, he was also aware of this, not only as he spoke to friends prior to his arrest, entered his plea, and had his judgment and sentenced imposed, and was no less aware of it as he languished in prison for some ten years before running into the former co-defendant. Without the declaration from his co-defendant, petitioner has a point that he is unlikely, certainly given all the circumstances, that he could have made any colorable showing of innocence of first degree murder. Petitioner's counsel argued at the hearing that even respondent has conceded that (see Reply, p. 5), under Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514 (1992),*fn22 a credible declaration of guilt made by another may establish factual innocence. Even assuming the declaration that petitioner's co-defendant has belatedly provided petitioner has any credibility, however, petitioner cannot virtually abandon any claim of actual innocence for a decade without any evidence of any effort in the record to seek to establish it.

Even if one were to impose the Schlup paradigm on the instant facts, permitting petitioner to raise his actual innocence whenever he felt it advantageous to do so, a requirement of the paradigm is that petitioner must establish that he is in fact innocent to overcome the limitations bar. See Johnson v. Knowles, supra, denying the attempt to overcome the limitations bar because petitioner did not prove his actual innocence.

In initially denying petitioner's claim in a 2004 petition that newly discovered evidence showed a miscarriage of justice, the Sacramento Superior Court stated, in relevant part:

Petitioner claims that his co-defendant Phillip Mann absolved

Petitioner of any culpability in the double homicide. The alleged newly discovered evidence is a statement (not signed under penalty of perjury) of Phillip Mann stating the Petitioner was not involved in the double homicide and that detectives coerced statements from Mann wrongfully incriminating Petitioner. First, the statement was not made under penalty of perjury and is therefore inadmissible as well as unreliable. Second, Petitioner pled guilty in both counts, admitting all of the elements of the offenses, so Mann's statement does not point unerringly to innocence of [sic] reduced culpability for Petitioner. Therefore, petitioner has not shown that there is newly discovered evidence supporting habeas relief.

Lodged Doc. 5.

Upon petitioner's motion for reconsideration after evidently making an effort to submit the statement by Mann under penalty of perjury, the court concluded:

The submitted documents purport to make the statement under penalty of perjury. Regardless of whether or not the affidavit is admissible, the petitioner was denied for the additional and independent reason that Petitioner's guilty plea admitted all of the elements of the offense. Therefore, Petitioner has not stated any valid reason for reconsideration of the Court's previous denial of the motion.

Lodged Doc. 7.

The ruling of the court is not contrary to, or an unreasonable application of, clearly established federal law. Nor is an evidentiary hearing on his claim to entitlement to equitable tolling warranted where further factual development is unnecessary. "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Schiro v. Landrigan, supra, 550 U.S. 465, 474, 127 S.Ct. 1933, 1940. "We have previously held that a district court in a habeas corpus proceeding "'need not conduct full evidentiary hearings,'" but may instead "'expand the record ... with discovery and documentary evidence.'" Williams v. Woodford, 384 F.3d 567, 590 (9th Cir. 2004). In this instance the court has expanded the record to include the preliminary hearing transcript, a part of the record which significantly tends to undermine petitioner's claim of actual innocence (see below).

The declaration evidently submitted by the co-defendant, which was not originally signed under penalty of perjury, as pointed out by the state court, states that petitioner, on the pertinent date, "had nothing to do with the matter...was a victim of circumstance....never had the firearm in question," or knowledge of it. Lodged Doc. 14, p. 3. The co-defendant, Phillip C(harles) Mann, goes on to assert that petitioner was implicated because both the detectives and the prosecutor "coerced" him by promising leniency; he concludes that petitioner is "innocent of all charges...." in the case. Id.

Petitioner belatedly, and perhaps conveniently, maintains now that all the circumstantial evidence for the shootings rested on Mann rather than on himself: the pistol used was a recent purchase of Mann's; Mann hid the gun after the shootings; Mann had previously threatened the life of the intended victim, his estranged girlfriend who was his child's mother; Mann had previously pointed a gun at the intended victim; Mann had an assault case pending, involving the intended victim as the assault victim; Mann was denied by the intended victim visits with his child; Mann believed the actual victim in the park to be his ex-girlfriend with another man; and Mann was angry with his ex-girlfriend over a supposed loss of $4,500.00 worth of home furnishings to her. Opp., p. 17; see also, petitioner's July 31, 2009, supplemental response in opposition (docket # 72), pp. 2-3. In addition, it was Mann who was the driver on the night of the shootings and the one who drove to retrieve the pistol from his house and then back to the park where he thought he had seen the intended victim with her friend, and Mann's mother had lent the intended victim $7,000.00 which she could not get back. Opp., p. 18; Supp. Resp. in Opp., p. 3.

However, as respondent points out, the evidence of petitioner's guilt was "overwhelming." Reply, p. 5. The factual basis at the time of petitioner's change of plea set forth the following:

[On] May 31st of this year, Mr. Chestang and another individual by the name of Phillip Mann were in the area of Vintage Park in the southeast portion of Sacramento County when they -- late at night, about eleven or twelve o'clock at night, when they saw two people in the park who they perceived to be Mr. Phillip Mann's prior girlfriend, a young lady by the name of Michelle Brown, and a young man that she was talking to who -- who raised some notions of jealousy on the part of Mr. Mann.

Mr. Mann and Mr. Chestang then obtained a pistol, stalked the victims in the park by driving around the park with their lights out.

Eventually Mr. Chestang got out of the vehicle, entered the park, approached the two people in the park, spoke to them briefly, and then shot them both with a pistol.

It turned out that the two people in the park were not Michelle Brown or anybody associated with Michelle Brown. It was entirely innocent individuals who happened to look like Michelle Brown, Sidney Newman and Marlena Ann Brooks, both of whom were -- were killed by the gunshots fired by Mr. Chestang.

The evidence indicates that Mr. Chestang and Mr. Mann gave -- planned this. They discussed it in the car before Mr. Chestang got out and actually approached the victims and shot them. They obtained a gun for the specific purpose that evening of shooting the two people in the park. Therefore, there is evidence of premeditation and deliberation.

Reply, pp. 5-6, quoting Lodged Doc. 32, pp. 4-5.

As respondent points out, petitioner, when given an opportunity to comment on the prosecution's summary of the evidence, declined, saying "No, sir," when asked by the judge if he wished to do so. Lodged Doc., p. 5. At the preliminary hearing, several of petitioner's and the co-defendant's friends/acquaintances testified either to co-defendant Mann's having informed them, in petitioner's presence, that petitioner had shot the victims, or to petitioner himself directly having detailed the shootings and where the gun came from. Docket # 67, pp. 65-66,*fn23 88-92, 102-107. The witnesses recounted how Mann and petitioner asked them to provide an alibi for their whereabouts at the relevant time. Id., pp. 62-63, 88, 92, 107-108. One witness described how petitioner told him that Mann had gotten scared and that it was he, petitioner, who had approached the victims and asked if they had seen a dog before he shot the girl three times and the man twice. Id., at 89-90. Petitioner, in his supplemental opposition, contends that this alleged assertion of petitioner's testified to by another at the preliminary hearing was belied by the testimony of the investigating deputy who found only three shell casings in the area, maintaining that believing petitioner's alleged confession requires believing that he could have been wrong on such a "critical factual point," a point on which only "the true shooter is likely to have the correct knowledge regarding." Supp. Resp. in Opp., p. 3. The court's review of the transcript reveals that Sacramento County Sheriff's Deputy Paul Spreitzer (a homicide bureau detective) testified to an approximation, that is, when asked if he had located any spent casings in the vicinity of the victims' bodies and to state how many "approximately," he stated: "I believe it was three." Docket # 67, pp. 9, 20. He also testified that the male victim had died of a gunshot wound to the chest, without clarifying whether he was shot once or twice. Id., at 18. The detective's testimony does not clarify precisely how many times either victim was shot. He additionally did testify to his observation of "a small amount of blood" on the female victim's head at the crime scene. Id., at 12. This could be taken to corroborate petitioner's evident representation, as testified to by an acquaintance of his named DeShawn Mays, that he believed petitioner had said he had shot her "in the back of her head." Id., at 103-104. The detective's limited preliminary hearing testimony does little to undermine petitioner's original guilty plea.

Petitioner is far from actually innocent, and his proffer, even utilizing a Schlup rationale, is insufficient to relieve him of the statute of limitations.

Conclusion

Accordingly, IT IS HEREBY RECOMMENDED that respondent's August 8, 2008 (docket # 49) motion to dismiss be granted.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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