The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER DENYING CERTIFICATE OF APPEALABILITY
David Pringle, a prisoner represented by appointed counsel, filed his petition for writ of habeas corpus in this Court on October 9, 2007. On June 22, 2010, Magistrate Judge Louisa Porter issued her report and recommendation (the "R&R") recommending that Pringle's petition for habeas corpus be denied. After Pringle filed objections to the R&R, the Court on January 13, 2011 issued an order modifying the R&R, adopting it, and denying the writ.
Pringle now appeals, and petitions for a certificate of appealability (COA). He agrees his sole claim is brought under a theory of actual innocence under Herrera v. Collins, 506 U.S. 390 (1993), but disagrees with the Court's holding that his petition was time-barred, that he did not demonstrate actual innocence, or that he could not show actual innocence even if given an evidentiary hearing.
Before the Court can issue a COA, Pringle "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further." Lambright v. Stewart, 220 F.3d 1022, 1025 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)) (alterations omitted). Had the Court denied the petition purely on procedural grounds, it would be required to engage in a two-part inquiry, considering first whether jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and second whether jurists of reason would find it debatable that the Court was correct in its reasoning. Id. at 1026 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Because the Court also relied on a substantive basis to deny the writ, it isn't required to undertake the two-part inquiry, but in the interests of completeness the Court will do so. Pringle must show the COA should issue, but doubt about whether the standard is met will be resolved in his favor. Lambright,220 F.3d at 1025.
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. In his objections to the R&R and in his notice of appeal, Pringle abandoned all claims except a stand-alone Herrera claim of actual innocence. In light of Lee, he specifically disclaimed any reliance on Schlup v. Delo, 513 U.S. 298 (1995) and argued he was bringing a stand-alone claim of actual innocence based on what he described as newly-discovered evidence, which he believed was recognized in Herrera. (Obj. to R&R, 14:16--26.)
Assuming, arguendo, a claim of actual innocence in a non-capital case is possible under Herrera, 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). The Supreme Court has also recently described this standard as requiring a showing that "evidence that could not have been obtained at the time of trial clearly establishes [the] petitioner's innocence." In re Davis, 130 S.Ct. 1, 1 (2009). A petitioner cannot succeed merely by casting doubt on the evidence that convicted him. Carriger at 466--67. In determining whether a petition successfully states an actual innocence claim, the Court looks at all evidence, including all new evidence. Majoy v. Roe, 296 F.3d 770, 776 (9th Cir. 2002) (quoting Schlup, 513 U.S. at 327).
Pringle argues his Herrera claim is viable in spite of his multiple confessions, including one made in writing, voluntarily, at the suggestion of his own attorney, and under penalty of perjury. That confession named Eddie Smallwood as Pringle's accomplice in the rape, kidnaping, and robbery for which Pringle is now incarcerated. At the end of the typewritten confession, below his signature, Pringle apparently spontaneously hand-wrote a note, confirming his confession and apologizing to the other defendant that he hadn't made it sooner. The confession prompted an investigation which cleared the man who had been convicted as Pringle's accomplice, resulting in that man's release. But DNA evidence obtained during the investigation tended to incriminate both Pringle and Smallwood.*fn1 Pringle later confirmed his written testimony to a deputy district attorney, who was conducting an investigation of the other defendant's guilt.
In his briefing, Pringle's counsel hinted, but never directly alleged, that Pringle was prepared to appear at a hearing and testify that his earlier confessions were lies. Although Pringle sought an opportunity to explain why he had made the confessions, he never said what those explanations would be, except to say that he signed the declaration "figuring he had nothing to lose." Even if this were an explanation for signing the confession, it doesn't explain why he hand-wrote the annotation after his signature, reaffirming the typed confession he had sworn to. Pringle also suggests, but studiously avoids alleging, he didn't confess to the deputy district attorney. Instead, he calls the attorney's affidavit "supposed evidence," claims he has never "had a chance to explain what was said," and argues "[t]hat can be explored at an evidentiary hearing." (Traverse, 3:9--10.)
The Court denied an evidentiary hearing. The Court agreed the eyewitness testimony identifying Pringle and the other defendant as the assailants was called into doubt later when the other defendant was cleared, but this doesn't tend to show Pringle himself was innocent. The only evidence in favor of Pringle's actual innocence was alibi testimony offered at trial and called into doubt by the prosecution's evidence. Even assuming a hearing were held and the Court found all the confessions were false, the DNA evidence and Pringle's prescient ability to identify Smallwood, whose DNA was consistent with the DNA of the other attacker,*fn2 would prevent him from meeting Herrera's "extraordinarily high" standard of showing he was probably innocent. Nor would the alibi testimony be sufficient to "clearly establish[ ]" his innocence. See Davis, 130 S.Ct. at 1.
In his application for a COA, Pringle argues that "if a jurist found Mr. Pringle's explanation of his purported confessions credible, there would no longer be any affirmative, reliable evidence of his guilt . . . ." (Application for COA, 3:13--15.) This argument is both false and misleading. First, Pringle proffered no reasonable explanation for the first of the two confessions the Court principally relied on, and none at all for the second. If there were an explanation for the confessions, Pringle knows what it is. If there were an explanation, he could have alleged it in the briefing instead of cagily withholding it, dangling only the possibility that something might turn up at the hearing.*fn3 Second, he didn't dispute making the confessions,*fn4 but only sought to explain them; thus, they are actual confessions, not purported confessions. Third, as noted, there is other reliable evidence of Pringle's guilt.*fn5 Timeliness
Under Ninth Circuit precedent, claims of actual innocence based on newly-discovered evidence are subject to AEDPA's one-year limitations period set forth in 28 U.S.C. § 2244(d)(1). Souliotes v. Evans, 622 F.3d 1173, 1177 (9th Cir. 2010); see also id. at 1181--82 (dismissing all other claims, but remanding petitioner's actual innocence claim for an evidentiary hearing to determine the triggering date under § 2244(d)(1)(D)).
The Court agreed with the R&R that the petition was time-barred. The Court, agreeing with the state court but disagreeing with the R&R, found Pringle waited many years after he uncovered evidence, or could reasonably have done so, before he filed a petition. Second, both the Court and the Magistrate Judge found that after Pringle admittedly had all the evidence he now relies on in his possession, he allowed AEDPA's limitations period to expire before filing his petition in this Court.
Pringle's counsel mischaracterizes the record when he claims the Court in its order disagreed with Magistrate Judge Porter in her ...