The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION, AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
On the evening of January 10, 1984, a woman leaving a store was forced into her vehicle by two men, robbed, driven to a dark residential area where she was raped, and later released near her home. A witness, Darren Wells, saw the victim abducted from the store parking lot and called police to report it. Frederick Daye was arrested and identified by the victim, and Petitioner David Pringle was identified three months later by Wells as one of the attackers. At separate trials for car theft, kidnaping, and rape, both Daye and Pringle were convicted. Pringle was convicted on August 17, 1984 and he was sentenced to an indeterminate term of life imprisonment with the possibility of parole. His conviction was affirmed on January 8, 1986. Pringle filed his petition for writ of habeas corpus in this Court on October 9, 2007. With the assistance of counsel, he filed his third amended petition on January 9, 2009.
Pursuant to Fed. R. Civ. P. 72 and 28 U.C.C. § 636, the petition was referred to Magistrate Judge Louisa Porter for a report and recommendation. Judge Porter issued her report and recommendation (the "R&R") on June 22, 2010. After some delay caused by a change in Pringle's counsel and Pringle's attempt to file objections he drafted himself, Pringle's counsel filed objections with Pringle's own objections attached as an exhibit.
A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Rule 72(b); see 28 U.S.C. § 636(b)(1). The district judge may also receive further evidence; or return the matter to the magistrate judge with instructions. Id. A party objecting to the recommended disposition of the matter may "serve and file specific written objections to the proposed findings and recommendations," and "a party may respond to another party's objections. . . ." Rule 72(b).
"The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Rule 72(b). When no objections are filed, the court may assume the correctness of the magistrate judge's findings of fact and decide the issues on the applicable law. Campbell v. United States Dist. Court, 501 F.2d 196, 209 (9th Cir. 1974).
The facts and procedural history are set forth in the R&R and the Court does not repeat them here except where necessary for discussion.
Pringle objects that the type of claim he is bringing is not subject to procedural bars such as AEDPA's limitations period, or that even if it is, he is entitled to tolling. Pringle waited over 20 years from his conviction to begin exhausting his claim, but argues that he could not reasonably have brought it earlier because it is based on newly-discovered evidence he first learned about in October, 2005.
The R&R concluded that Pringle's petition was time-barred under AEDPA because he first began attempting to exhaust his claims in state court on February 15, 2006, approximately 20 years after his conviction became final. The R&R rejected his argument that claims of actual innocence were subject to the one-year limitations period. After the R&R was issued, the Ninth Circuit issued its decision in Lee v. Lampert, 610 F.3d 1125, 1128--31 (9th Cir. 2010), holding a claim of actual innocence was not a gateway through which otherwise time-barred claims could be brought, which appeared to confirm the R&R's conclusions.
In his objections, Pringle argues Lampert only applies to claims of actual innocence brought under Schlup v. Delo, 513 U.S. 298 (1995), which he now abandons. Instead, he argues he is bringing a stand-alone "actual innocence" claim under Herrera v. Collins, 506 U.S. 390 (1993). The R&R recognized this possibility and addressed whether Pringle could succeed with a Herrera-type claim.
Pringle argues the Constitution doesn't permit any type of procedural bar to a Herrera-type claim of actual innocence in a habeas petition, but this is erroneous. Recently, in Souliotes v. Evans, 622 F.3d 1173 (9th Cir. 2010), a non-capital case, the Ninth Circuit rejected a petitioner's claims of constitutional error, but remanded his stand-alone claim to the trial court with instructions to determine whether the petitioner could with due diligence have uncovered the evidence he says proves his innocence. If he could reasonably have uncovered the evidence earlier, his claim would be time-barred. Id. at 1175, 1177--80 ("[W]e hold that § 2244(d)(1)(D) . . . applies to Souliotes' innocence claim . . . .")
As Pringle admits, a stand-alone claim is more difficult to establish than a Schlup-type claim. Assuming such a claim to be possible, the standard would be "extraordinarily high," and a petitioner must demonstrate that he is probably innocent. Carriger v. Stewart, 132 F.3d 463, 476--77 (9th Cir. 1997) (en banc). A petitioner cannot succeed merely by casting doubt on the evidence that convicted him. Id.
As pointed out in Souliotes' dissent, it is doubtful whether Herrera actually permits habeas petitioners to bring stand-alone claims of actual innocence in non-capital cases. 622 F.3d at 1182--83 (noting that two other circuits had found such claims were precluded by Herrera and ...