The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
In this habeas matter, the parties have consented to the jurisdiction of the undersigned. See docket # 16, # 32 & # 33. On May 9, 2012, respondent filed a motion to dismiss the petition as barred by 28 U.S.C. § 2244(d), the statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Petitioner has not opposed the motion.*fn1
Local Rule 230(l) provides in part: "Failure of the responding party to file written opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion . . . ." In this instance, the court deems petitioner's wholesale failure to oppose the motion as a waiver of opposition. In the alternative, the court has reviewed the motion and found that it has merit.
The statute of limitations for federal habeas corpus petitions, which became effective on April 24, 1996, is set forth in 28 U.S.C. § 2244(d)(1):
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
On February 18 or 19, 1993,*fn2 petitioner was sentenced to a term of 48 years in state prison, having been found guilty by a jury, on December 18, 1992, of multiple counts of forcible penetration by a foreign object, three counts of forcible rape, as well as for one count each of assault, assault with a deadly weapon, false imprisonment and making terrorists threats. First Amended Petition (FAP), p. 1; Motion to Dismiss (MTD), p. 2, & respondent's Exhibit 1 (docket # 34-1), pp. 7-8, unpublished decision by California's First District Court of Appeal. Petitioner filed an appeal on March 9, 1993, and the state appellate court affirmed the conviction, on February 23, 1994, as to all counts but two counts of rape for insufficiency of evidence; the case was remanded for re-sentencing.*fn3 MTD, p. 2 & Respondent's Exs. 1, 3. The state Supreme Court denied review on June 1, 1994, and the state court of appeal affirmed petitioner's re-sentencing on July 13, 1995, after which petitioner did not seek review. Id., & Respondent's Exs. 4 & 5.
Thus, petitioner's conviction became final prior to the AEDPA's effective date on April 24, 1996, which, as respondent observes, signifies that petitioner had, absent applicable tolling, until April 24, 1997, to file the instant petition. MTD, p. 2, citing Patterson v. Stewart, 251 F. 3d 1243, 1245-46 (9th Cir. 2001) (one-year grace period to file federal habeas petitions for state prisoners whose convictions became final before AEDPA's enactment). There could have been no tolling as there is no evidence any petition was pending at the time of the commencement of the effective date of the AEDPA.
To the extent petitioner intended to make a claim of "actual
innocence" in his only remaining ground for relief, the fourth ground,
insufficient evidence (entitled "lack of evidence"),*fn4
in his amended petition, he fails to make the showing
required to invoke the "actual innocence" exception. While "a credible
claim of actual innocence constitutes an equitable exception to
AEDPA's limitations period," passing through the gateway of Schlup v.
Delo, 513 U.S. 298, 327, 115 S.Ct. 851  (1995), in order to do so
"petitioner must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the new
evidence." Lee v. Lampert, 653 F.3d 929, 932, 938 (9th Cir. 2011) (en
banc). Petitioner's inadequately supported assertion of being "in and
out [of] town" during the relevant period does not constitute new
evidence in support of his claim. Amended Petition, p. 5. Thus, the
petition in this matter filed, by liberal application of the mailbox
rule,*fn5 on July 20, 2010, is untimely by more than
thirteen (13) years.
Accordingly, IT IS ORDERED that:
1. Respondent's unopposed motion to dismiss the petition as untimely under the AEDPA, filed on May 9, 2012 (docket # 34), is granted and this ...