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.
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 ...