UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
February 4, 2011
DOMINGO URIBE, WARDEN,
The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION, AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
Anthony Hill, a prisoner in state custody, proceeding pro se, filed his petition for writ of habeas corpus in this Court on June 18, 2009. Pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72, the petition was referred to Magistrate Judge Cathy Bencivengo for a report and recommendation.
After receiving briefing, Judge Bencivengo on May 18, 2010 issued her report and recommendation (the "R&R"), noting that the petition was possibly time-barred but recommending the simpler approach of denying it on the merits. Hill then filed objections to the R&R.
I. Legal Standards
A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." Id.
In the early morning hours of July 14, 2002, two male Swedish tourists were robbed in a restroom in the boardwalk area in San Diego's Mission Beach neighborhood. The evidence showed a man matching Hill's description approached the two tourists, asking them to buy sexual favors from two women he was with. The tourists then went into a public restroom, where the man robbed them at gunpoint, forced them to undress, and shot one in the knee. After dressing, the victims made their way across the street to an open restaurant, where a youth called police.
At trial, both victims identified Hill as the robber. Hill challenged the reliability of these identifications. Hill's uncle had been called as an alibi witness, but his testimony left a 4- to 5-hour window in which Hill could have committed the crime. While on the stand, Hill's uncle also identified one of the two women as Hill's wife.
Although Respondent raised untimeliness as a defense, the R&R
recommended deciding the petition on the merits, finding the merits
more easily resolved than the question of timeliness.*fn1
Pough v. United States, 442 F.3d 959, 965 (6th Cir. 2006)
(holding that a federal court may deny a habeas petition on the merits
if the timeliness issue is complex).
But in view of later Ninth Circuit rulings clarifying the law, the Court believes the timeliness issue is more easily resolved than before, and reaches it now. Hill didn't object to the R&R's findings concerning the procedural history, and the Court finds them to be consistent with the lodgments. The R&R's recitation of the procedural history is therefore ADOPTED.
Hill's conviction became final on April 20, 2005, when the California Supreme Court, en banc, denied appellate review. He then embarked on a series of successive habeas petitions in the California courts. The first two of these raised the "actual innocence" claim (based on the discovery of three witnesses whose testimony he now argues would exonerate him). In this process, he filed a petition in the California Court of Appeal, but on June 19, 2006 he filed a request to withdraw it. The Court of Appeal granted that request on June 29, 2006, and the petition was dismissed. (Lodgment 13.) Hill then waited over 17 months before filing his next petition on December 3, 2007. (Lodgment 14.) That petition was denied in a relatively brief order finding no merit. (Lodgment 16.)
A month after that denial, he began his third round of state habeas review by filing a petition in the California Court of Appeals. That petition, was denied both on the merits and as untimely. (Lodgment 18 at 2.) The California Supreme Court denied his next petition, apparently without comment. (Lodgment 20.) He then embarked on his fourth round of state habeas review by filing a petition in the California Court of Appeals. This again was denied both on the merits and as untimely. (Lodgment 22 at 1.)
Because Hill didn't file his petition in this Court until June 18, 2009, it is late by over three years unless tolling applies. Under AEDPA, the limitations period is tolled for "[t]he 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 . . . ." 28 U.S.C. § 2244(d)(2). From June 29, 2006 to December 3, 2007, Hill had no petition pending in state court. Petitioners who pursue their habeas petitions in the California courts are entitled to "gap tolling" (also known as "interval tolling") between the denial of relief by a lower court and the filing of a petition in a higher court, but only if the later petition is filed within a "reasonable time." Maxwell v. Roe, ___ F.3d ___, 2010 WL 4925429 at *5 (9th Cir., Nov. 30, 2010) (citing, inter alia, Evans v. Chavis, 546 U.S. 189, 192--93 (2006)). Although California has not specified what a "reasonable time" is, Evans at 198, far shorter delays have been determined to be unreasonable. See, e.g., Banjo v. Ayers, 614 F.3d 964, 969 (9th Cir.2010) (holding that a petitioner's delay of 146 days between filing of petitions was "plainly" unreasonable). Hill's delay of over a year and five months is plainly unreasonable. Even if AEDPA's limitations period was tolled up to that point, it expired during that 17-month interval.
It is also clear that in permitting Hill to withdraw his petition, the Court of Appeals was not tolling, staying, or extending time in any way. Compare Rogers v. Giurbino, 2007 WL 2873712 at *3--*4 (S.D.Cal., Sept. 28, 2007) (rejecting petitioner's argument that he was entitled to tolling between rounds of habeas review after he voluntarily withdraw his first petition). Later rulings by the state courts finding the petition untimely confirm this. Hill's petition is therefore time-barred and must be denied for this reason.
Although Ninth Circuit precedent requires that the petition be denied on this basis, it is possible that jurists of reason might disagree that claims of actual innocence can be time-barred. See Pringle v. Runnels, 2011 WL 291181 at *3 (S.D.Cal., Jan. 25, 2011) (citing In re Davis, 130 S.Ct. 1, 1 (2009) and Osborne v. Dist. Attorney's Office, 521 F.3d 1118, 1140 (9th Cir. 2008)). The Court will therefore also address the merits of Hill's actual innocence claim. If that claim clearly lacks merit, reasonable jurists would agree the petition as a whole is also time-barred.
B. Actual Innocence Claim
As discussed in the R&R, this claim was presented to the California Court of Appeals and the California Supreme Court, and rejected by both, although only the Court of Appeals issued an order accompanied by reasoning. (R&R, 28:3--6.) That court considered and rejected Hill's claim of actual innocence, finding the new evidence "might have weakened the prosecution case or presented a more difficult question for the jury," but didn't show he was innocent. (Lodgment 18 at 5.) That decision also found the three witnesses' declarations "facially defective." (Id. at 4.)
The Court is required to accept the determination of a factual issue made by a state court, unless the petitioner can rebut "the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Here, Hill hasn't provided any additional evidence, but has simply argued the state court's assessment was unreasonable. (Obj. to R&R, 6:11--7:4.) Specifically, he argues that the three witnesses could logically have known who actually committed the shooting and robbery (id., 6:14--17); that the witnesses saw every possible suspect leave the restroom after the shooting and robbery, none of whom was Hill (id., 6:16--20); and that all three witnesses had a conversation with a man in a white jumpsuit (not Hill), whom they would testify committed the shooting and robbery. (Id., 6:21--24.)
Hill hasn't included the proposed evidence, but he did attach it to many of his state court pleadings. Not all of these are complete or paginated, so for convenience and clarity, the Court will refer to the declarations found in Lodgment 10 (Pet. for Reconsideration filed Oct. 19, 2005), Ex. B, from B-27 to B-30, B-37 to B-41, and B-25 to B28.*fn2
The three proposed witnesses, Kenneth Bess, Adam Nuno, and Bianca Towne, were friends of a witness who in turn was a friend of Hill and his wife. (Bess Decl., ¶ 8; Nuno/Towne Decl., ¶ 5; Lodgment 2 (trial transcript) at 10:27--11:3, 12:4--11.) The declaration of Hill's attorney merely characterizes Bess's testimony, which she was proffering to the court. While the declaration of Bess himself might be admissible, Hill's attorney's is clearly not.
All three witnesses claim to have seen and even talked with a man generally similar to Hill at the adjacent beach that day, whom they believed was looking for opportunities to rob people. All three witnesses also say they saw this man, not Hill, running out of the restroom after the shooting. Their helpfulness to Hill ends there, however.
Bess's declaration doesn't say what Hill claims it does. Its factual statements are somewhat contradictory: Although he declares he saw "the guy coming out of the restroom" and knew he was someone who looked like Hill but wasn't, (Bess Decl., ¶ 14), he also says he was at a nearby restaurant when he heard the shot fired. (Id., ¶ 12.) Later, at an unidentified time sometime before October 13, 2003, he says he met Hill for the first time while in a holding tank and, while discussing Hill's case, realized Hill wasn't the shooter that night. (Id., ¶¶ 5, 10.) The declaration doesn't say how much time elapsed between the shooting and the time Bess first met Hill and concluded he wasn't the shooter.
The joint declaration of Nuno and Towne also doesn't say what Hill claims it does. Instead, these witnesses say they saw the man who earlier had been wearing a white jumpsuit enter the restroom with a friend (or with the two victims)*fn3 and also with two women. (Nuno/Towne Decl., ¶¶ 9, 11.) Then they mention the shooting, after which the man they believed to be the shooter ran out the back door of the restroom. (Id., ¶ 10.) They say nothing about seeing anyone else leaving the restroom, which presumably would have included the two women, the other man (if there was a second man), and a little later the victims. The declaration also gives a description of the shooting victim with no explanation of how the witnesses knew which of the two men had been shot. (Id., ¶ 11.) Though they declare they were "right there when the shooting happened," (Id., ¶ 10), it is unclear how close they were and what opportunity they had to observe events. As with Bess's proposed testimony, the best this testimony can show is that Nuno and Towne believed that someone besides Hill was the shooter.
Neither declaration gives basic foundational information, such as how where in relation to the restroom the declarants were, or whether the restrooms were always in their view so that they would have seen everyone who entered or left. This is an important omission, because Bess says he was at a restaurant across the street from the restroom with his friends when a shot was heard. (Bess Decl., ¶¶ 8, 9, 12, 20.) It is unclear whether Nuno and Towne were also at the restaurant, but he implies they were (id., ¶¶ 2, 8,9) and they are silent on this point.
Both declarations omit information about as how and when the victims left the restroom.*fn4 Nuno's and Towne's statement that the women also entered the restroom (Nuno/Towne Decl., ¶ 9), is omitted by Bess and contradicts the record. (See, e.g., Lodgment 2 (trial transcript) at 76:6--7.). Because the declarants' beliefs about the shooter's identity were based on who they saw entering and leaving the restroom, this information would show whether their conclusions were well-founded.
It is also worth noting the declarations appear to disagree on important details. By way of example, both Bess and Nuno declared they had repeatedly met the other man during the day. Bess declared the man looked like Hill but was not Hill. (Bess Decl., ¶ 10.) Nuno and Towne declared the man did not look like Hill. (Nuno/Towne Decl., ¶ 3.) Nuno and Towne also say the unknown man had earlier been wearing a white jumpsuit but had put on a bomber jacket before going into the restroom. (Id., ¶ 9.) Bess merely says the man had on a white jumpsuit. (Bess Decl., ¶ 14.)
The state courts didn't discuss the declarations in detail, except to conclude they were insufficient. In view of the problems with the declarations, this is not an unreasonable finding. Hill makes other arguments based on the evidence presented at trial, but the state courts also took this into account and concluded it didn't show he was innocent or even entitled to a new trial. If the proffered testimony in some way other interlocks with evidence produced at trial to support Hill's claim of actual innocence, he hasn't explained how. On the basis of this evidence, the Court cannot say Hill has rebutted the state courts' factual determinations, and is therefore required to accept their determinations as correct.
C. Other Objections
Because Hill cannot show he is actually innocent, his remaining claims are time-barred. His objections concerning these other claims are therefore OVERRULED as moot.
III. Conclusion and Order
Hill's objections are OVERRULED. With the modifications mentioned above, the Court ADOPTS the R&R. The petition is DENIED.
IT IS SO ORDERED.