The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
Order Adopting in Part and Rejecting in Part Magistrate Judge's Report and Recommendation; Denying Respondent's Motion to Dismiss
Petitioner Leovardo Salcedo has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 1995 conviction and sentence*fn1 for kidnapping with prior convictions in San Diego County Case No. SDC112436. Along with his initial petition, Petitioner filed an application for equitable and statutory tolling under 28 U.S.C. § 2244. [Doc. No. 3.] Respondent moved to dismiss the petition, arguing it is barred by the one-year statute of limitations. [Doc. No. 28.]
On August 14, 2009, Magistrate Judge Peter C. Lewis filed a report and recommendation ("R&R"), recommending that the Court grant the motion to dismiss. Petitioner filed his objections to the R&R on November 12, 2009. Respondent did not file a reply. Upon de novo review of the each of the parties' filings in this case*fn2 , the R&R, and Petitioner's objections, the Court concludes the Magistrate Judge correctly concluded that Petitioner is not entitled to statutory or equitable tolling. Thus, the Court ADOPTS that portion of the R&R.
Nonetheless, neither Respondent nor the R&R addresses Petitioner's claim that he is entitled to have his claims heard under the "actual innocence" gateway set forth in Schlup v. Delo, 513 U.S. 298, 316 (1995). Therefore, the Court REJECTS that portion of the R&R that recommends the Court grant Respondent's motion to dismiss. Instead, the Court DENIES the motion to dismiss, without prejudice to Respondent filing a second motion addressing Petitioner's claim he is entitled to proceed through the actual innocence gateway.
The R&R contains a complete and accurate summary of Petitioner's state post-conviction proceedings, and the Court fully adopts the R&R's statement of procedural background. In sum, a jury found Petitioner guilty of kidnapping and exhibiting a deadly weapon. Following a bifurcated court trial, the trial court found Petitioner had three prior strikes, two serious felony priors, and one prior prison term. Based thereon, the trial court sentenced Petitioner to a term of 35 years to life.
The California Court of Appeal affirmed Petitioner's conviction, but remanded the case with directions for the trial court to consider whether to strike any of the priors. On remand, the trial court struck two priors and sentenced Petitioner to 26 years to life -- double the eight-year upper term for kidnapping with a strike, enhanced by two five-year terms for the prior serious felony convictions. The California Court of Appeal affirmed the new sentence on March 25, 1998, and Petitioner did not seek review by the California Supreme Court.
In June of 2002, Petitioner filed a state habeas corpus petition, challenging the trial court's use of a 1989 robbery conviction to enhance his sentence. Petitioner filed a total of three rounds of state habeas corpus petitions in the Superior Court, Court of Appeal, and California Supreme Court before he filed his current petition in this Court on June 6, 2008, each raising issues regarding the validity of the 1989 robbery conviction and the use of that prior conviction to enhance his current sentence. The California Supreme Court denied the final petition on June 11, 2008, after Petitioner filed his federal habeas corpus petition.
Petitioner objects to one portion of the R&R's procedural history, where Magistrate Judge Lewis states that the California Supreme Court "summarily denied" his first petition for writ of review in Case No. S125591. [Objection #3, pp. 10-16.] As Petitioner points out, the California Supreme Court in fact denied the petition in Case No. S125591 on June 8, 2005 with citations to In re Robbins, 18 Cal. 4th 770, 780 (1998) and In re Swain, 34 Cal. 2d 300, 304 (1949), as well as In re Dixon, 41 Cal. 2d 756 (1953), In re Lindley, 29 Cal. 2d 709 (1947), and In re Waltreus, 62 Cal. 2d 218 (1965) . [Lodgment No. 19.]
The following facts are relevant to evaluate Petitioner's assertion (1) that his current petition is timely by the application of equitable or statutory tolling, or (2) that the Court should consider his claims because he is actually innocent of one of the prior convictions used to enhance his current sentence. As noted above, one of the prior serious felony convictions upon which the trial court relied in enhancing Petitioner's sentence was a 1989 conviction on two counts of robbery. Petitioner argues (1) he is actually innocent of one of the two 1989 robbery counts, relating to Mr. Haro, (2) the 1989 robbery of Mr. Haro should not have been used to enhance his current sentence, (3) his trial attorney with regard to the 1989 conviction was constitutionally ineffective for failing to challenge the factual basis for the "slow plea," (4) his 1989 "slow plea" was invalid because he was never advised by the court or his attorney of his constitutional rights before he agreed to submit the matter to the trial judge based on the transcripts of the preliminary hearing, and (5) his trial attorney with regard to the current conviction was constitutionally ineffective for failing to investigate the validity of the 1989 robbery conviction.
Petitioner always maintained he did not rob Mr. Haro, but Petitioner was unable to obtain any evidence to support his claim until recently. Petitioner argues he now has several pieces of exculpatory evidence, including (1) a November 15, 2001 sworn statement by a witness, Juan Sanchez, saying Petitioner did not rob Mr. Haro (Objections, Exhibit 2, page 8),*fn3 (2) two sworn statements, dated May 20, 2004 and July 19, 2006, by the actual robber, Jesus Lopez, that he alone robbed Haro (Objections, Exhibit 2, pages 9-14) , and (3) a May 21, 2003 letter from the prosecutor responsible for the 1989 robbery case, stating that on the first day of Petitioner's scheduled trial in 1989, Mr. Haro indicated he had misidentified Petitioner as the person who robbed him (Objections, Exhibit 2, page 4).*fn4
The R&R sets forth the correct legal standard the Court must apply in considering whether the current petition is time-barred. Pursuant to 28 U.S.C. § 2244, (d)(1) A 1-year period of limitations 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 ...