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Kenneth Clark v. Timothy E. Busby

April 5, 2011

KENNETH CLARK, PETITIONER,
v.
TIMOTHY E. BUSBY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Dolly M. Gee United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY

I. INTRODUCTION AND SUMMARY

On June 21, 2010, petitioner Kenneth Clark ("Petitioner") filed a Petition for Writ of Habeas Corpus ("Petition").

Shortly thereafter, on August 13, 2010, Respondent filed a Motion to Dismiss the Petition ("Motion"), asserting that the Petition is barred by the one-year statute of limitation set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1). Petitioner filed an Opposition ("Opposition").

On February 24, 2011, the Magistrate Judge issued his Report and Recommendation ("R&R"), recommending that the Motion be granted and that judgment be entered dismissing this action with prejudice. (See R&R at 2, 12.)

On March 15, 2011, Petitioner filed Objections to the R&R ("Objections"), which was prepared with the assistance of counsel Patrick Morgan Ford.*fn1 (See Objs. at 2, n. 1.)

In his Objections, Petitioner makes two new contentions. First, Petitioner contends that he is subject to an actual innocence exception to the statute of limitation. (See Objs. at 1, 3.)

Second, Petitioner claims that he is entitled to equitable tolling due to his "counsel's misunderstanding of the law." (See Objs. at 4-5.)

Now, having conducted a de novo review, including studying the Motion, the Opposition, the Reply, the R&R, and the Objections, the Court is persuaded that the Petition is untimely. This Court, therefore, adopts the findings, conclusions, and recommendations of the Magistrate Judge.

II. DISCUSSION AND ANALYSIS

A. Actual Innocence

Petitioner first complains that "the R&R makes no reference to the possibility that there may be an exception to the statute of limitations for federal habeas corpus relief where a state prisoner makes a showing of actual innocence."*fn2 (Objs. at 3 (bold omitted).) Petitioner states that he "was convicted upon the testimony of a single eyewitness, who would later acknowledge that he was pressured by police to implicate petitioner, or face prison himself. Petitioner has always strenuously maintained his innocence." (Id. at 1.)

The Ninth Circuit has not conclusively decided the issue raised by Petitioner and the Court sees no need to do so in this case. See Lee v. Lampert, 610 F.3d 1125, 1136 (9th Cir. 2010), Lee v. Lampert, 2011 WL 499347, at *1 (9th Cir. Feb. 8, 2011); Majoy v. Roe, 296 F.3d 770, 776 (9th Cir. 2002). To establish a gateway claim of actual innocence, Petitioner "must show that in light of all the evidence . . . 'it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir. 1997) (en banc), cert. denied, 523 U.S. 1133 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

Under Schlup, a petitioner must establish his factual innocence of the crime, and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998). The Supreme Court further held in Schlup that, "[t]o be credible, such a claim [of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial." See Schlup, 513 U.S. at 324. Moreover, the Ninth Circuit has noted that, because of "the rarity of such evidence, ...


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