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Ruiz v. Gonzalez


October 2, 2009


The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge


Effective March 7, 2009, petitioner Danny Ruiz, a state inmate proceeding pro se, filed a habeas corpus petition under 28 U.S.C. § 2254, and on May 18, 2009, respondent filed a motion to dismiss the petition, arguing it is untimely. On September 29, 2009, petitioner filed his opposition to the motion to dismiss. The parties have consented to this Court to conduct all proceedings pursuant to 28 U.S.C. § 636(c).


On May 5, 1998, the People filed an information in San Bernardino County Superior Court case no. FVA09446, charging petitioner*fn1 with one count of attempted, willful premeditated murder in violation of California Penal Code ("P.C.") §§ 664/187(a) (count 1), one count of attempted second degree robbery in violation of P.C. §§ 664/211 (count 2), and one count of unlawful driving or taking of a vehicle in violation of California Vehicle Code § 10851(a)(3), and as to counts 1 and 2, it was further charged that petitioner personally used a firearm within the meaning of P.C. § 12022.53(b), petitioner personally inflicted great bodily injury upon an individual not an accomplice within the meaning of P.C. § 12022.7(a), and the crimes were committed for the benefit and in association with a criminal street gang with the specific intent to promote criminal conduct by gang members within the meaning of P.C. § 186.22(b)(4). Lodgment no. 8 at 1-5. On February 9, 1999, pursuant to a stipulated written plea agreement, petitioner pleaded guilty to, and was convicted of, the lesser-included offense of attempted murder without premeditation in violation of P.C. §§ 664/187 (count 1), and petitioner admitted that during the course of the offense he personally used a firearm and inflicted great bodily injury within the meaning of P.C. § 12022.53(c). Lodgment no. 9 at 5:28-6:8. On March 11, 1999, the trial court sentenced petitioner to the stipulated total term of 29 years in state prison, and suspended imposition of the sentence on the condition petitioner serve one year in the county jail (he was given credit for having served 331 days) and be on probation for five years. Lodgment nos. 1, 9 at 14:16-18:3. The petitioner did not appeal his conviction or sentence. Petition at 2.

On October 24, 2000, petitioner admitted he violated probation, and the trial court revoked his probation and imposed the previously suspended sentence of 29 years in state prison. Lodgment no. 8 at 71, 76-77.

On or about June 16, 2008, petitioner filed a habeas corpus petition in the San Bernardino County Superior Court, claiming his plea bargain agreement was not honored, and on July 3, 2008, the Superior Court denied the petition. Lodgment no. 2. On July 16, 2008, petitioner filed a habeas corpus petition in the California Court of Appeal, which denied the petition on August 13, 2008. Lodgment nos. 3-4. On August 21, 2008, petitioner filed a habeas corpus petition in the California Supreme Court, which denied the petition on February 11, 2009. Lodgment nos. 5-6.


The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "established a one-year period of limitations for federal habeas petitions filed by state prisoners," Bryant v. Arizona Attorney Gen., 499 F.3d 1056, 1059 (9th Cir. 2007), as follows:

(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. . . .

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

(2) 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 subsection.

28 U.S.C. § 2244(d).

The petitioner did not appeal his conviction, sentence, or probation revocation to the California Court of Appeal, and the conviction became final no later than 60 days after petitioner's probation was revoked on October 24, 2000.*fn2 See former California Rules of Court, Rule 31(d) (2000);*fn3 Lewis v. Mitchell, 173 F. Supp. 2d 1057, 1060 (C.D. Cal. 2001); People v. Coleman, 13 Cal. 3d 867, 871 n.1, 120 Cal. Rptr. 384, 389-90 n.1 (1975) ("An order revoking probation is appealable as an order made after judgment affecting a defendant's substantial rights."). Thus, for petitioner, the statute of limitations began to run no later than December 27, 2000,*fn4 and expired no later than December 26, 2001. The instant action was not filed until more than seven years after the statute of limitations had run; thus, it is untimely.

Since petitioner's recent state habeas corpus petitions were filed in 2008, after the statute of limitations expired, they neither toll nor revive the expired limitations period. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000).

There also is no basis for this Court to equitably toll the AEDPA's statute of limitations. A habeas petitioner is entitled to equitable tolling "only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (citation and internal quotation marks omitted); Espinoza-Matthews v. People of the State of Cal., 432 F.3d 1021, 1026 (9th Cir. 2005). The petitioner bears the burden of proving: "(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, 161 L.Ed. 2d 669 (2005); Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006). Additionally, "the prisoner must show that the 'extraordinary circumstances' were the but-for and proximate causes of his untimeliness." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (citations and internal quotation marks omitted); Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006), cert. denied sub nom., Belleque v. Kephart, 549 U.S. 1317 (2007). Here, petitioner contends that despite his guilty plea, he is actually innocent of the crime of which he was convicted.*fn5 See Petition at 5.

An actual innocence claim may constitute an "extraordinary circumstance" warranting equitable tolling, see, e.g., Souter v. Jones, 395 F.3d 577, 599 (6th Cir. 2005) ("[E]quitable tolling of the one-year limitations period based on a credible showing of actual innocence is appropriate."); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) ("Equitable tolling would be appropriate . . . when a prisoner is actually innocent. . . .".), or act as an exception to the statute of limitations. See United States v. Zuno-Arce, 339 F.3d 886, 890 n.5 (9th Cir. 2003) (Petitioner's actual innocence claim "is not in itself a constitutional claim, but would serve only to remove the timeliness bar so that claims may be heard on the merits."), cert. denied, 540 U.S. 1208 (2004). In either event, "[t]o be credible, [an actual innocence] claim requires petitioner to support his allegations . . . with new reliable evidence . . . that was not presented at trial[,]" and to "show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup, 513 U.S. at 324, 327, 115 S.Ct. at 865, 867; Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 1503, 140 L.Ed. 2d 728 (1998); Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003), cert. denied, 541 U.S. 998 (2004). Moreover, "'actual innocence' means factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 623-24, 118 S.Ct. at 1611.

To support his actual innocence claim, petitioner proffers an unsworn statement purportedly made in 1998 by the attempted murder victim, Jaime Marquez. Petition at 23-25. This document is not competent evidence, and it fails to raise a viable actual innocence claim. First, the document, which is not signed under penalty of perjury or notarized, is not reliable. See Doe, 391 F.3d at 161 ("Because Schlup explicitly states that the proffered evidence must be reliable, the habeas court must determine whether the new evidence is trustworthy by considering it both on its own merits and, where appropriate, in light of the pre-existing evidence in the record."). Second, petitioner has not explained his lengthy delay in presenting this evidence to the Court. See Pace, 544 U.S. at 419, 125 S.Ct. at 1815 ("Under long-established principles, petitioner's lack of diligence precludes equity's operation."); Welch v. Carey, 350 F.3d 1079, 1083 (9th Cir. 2003) (en banc) ("Tolling accommodates effort, not inaction."), cert. denied, 541 U.S. 1078 (2004). Third, even setting these problems aside, and taking the document at face value, it does not establish petitioner's factual innocence since the victim merely states he does not know who shot him, but believes someone named "Mark" might have, and this clearly is "insufficient to satisfy the threshold showing under Schlup. . . ." Arthur v. Allen, 452 F.3d 1234, 1246 (11th Cir. 2006), modified by, 459 F.3d 1310 (11th Cir. 2006), cert. denied, 549 U.S. 1338 (2007); see also Melson v. Allen, 548 F.3d 993, 1003 (11th Cir. 2008) (affidavit that does not exonerate petitioner is "unconvincing" and insufficient to satisfy Schlup threshold), pet. for cert. filed, (July 16, 2009); Hayman v. Commonwealth of Pa., 624 F. Supp. 2d 378, 394-95 (E.D. Pa. 2009) (petitioner does not demonstrate he is entitled to equitable tolling based on claim of actual innocence when he presents no new evidence that would have altered his decision to plead guilty and does not explain why he waited over ten years before raising his claim on habeas corpus). For all these reasons, petitioner has not shown the statute of limitations should be equitably tolled, and his habeas corpus petition is determined to be untimely.


IT IS ORDERED THAT Judgment be entered dismissing the petition and action as untimely.

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