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Lamont Shepard v. Connie Gipson

October 15, 2012


The opinion of the court was delivered by: Hon. Michael R. Wilner United States Magistrate Judge



This is a state habeas action. Petitioner challenges his life sentence for a criminal conviction incurred in 1996. Although Petitioner initially suggested that he is "actually innocent" of the conduct underlying the case, he withdrew that claim and presents a much narrower basis for seeking federal habeas review. His claims are time-barred under federal law, though. As a result, the Attorney General's motion to dismiss the untimely habeas action will be granted.


A. State Court Proceedings

In 1996, a state court jury convicted Petitioner for his role in a gang-related drive-by shooting in Compton. Petitioner was convicted of murder, attempted murder, and related weapons charges and enhancements. The trial judge sentenced Petitioner to two consecutive life sentences plus three years in state prison. (Docket # 13 at 1.) Petitioner's conviction was affirmed in the court of appeal. The conviction became final upon the denial of a petition for review in the state supreme court in early 1999.

After that, Petitioner began a long habeas journey through the state court system. According to the Attorney General's brief, Petitioner filed at least 11 habeas petitions in the state superior, appellate, and supreme courts. (Id. at 1-3 (summarizing state court history).) Some of the state courts issued reasoned decisions regarding Petitioner's claims. Some summarily denied the petitions, or gave shorthand references to state court decisions signifying that Petitioner's claims were untimely under state law or could have been raised on direct appeal. No state court granted Petitioner any relief from his convictions or sentence.*fn1

B. Federal Habeas Action

Petitioner filed this federal habeas action in April 2012.*fn2 The petition originally consisted of three claims. In Ground One, Petitioner contended that he is "illegally restrained of his liberty" because his attempted murder conviction is inconsistent with the jury's "not true" findings as to several sentencing enhancements. In Ground Two, Petitioner advanced a similar argument that he is "actually innocent" because of the composition of the jury's verdict. In Ground Three, Petitioner claimed that a police witness committed perjury at trial and that the prosecution failed to disclose exculpatory evidence. (Docket # 1 at 5-12.)

Because the petition appeared to be time-barred on its face, the Court instructed Petitioner to submit an additional statement to establish the timeliness of his action, including any information or evidence to support an argument for equitable tolling of the statute of limitations. (Docket # 4.) Petitioner submitted a statement in which he conceded that his habeas petition "does look untimely" and that he "agree[d] with the Court that I waited over a decade to seek federal court relief." (Docket # 5 at 2-3.) However, Petitioner argued that he thought that his case was still on appeal in state court, and he was ignorant of the legal requirements to seek federal review. Petitioner acknowledged that he only "attacks the sentence in this petition" based on his claim that he was illegally sentenced. (Id.)

Additionally, Petitioner submitted a declaration signed by one of the victims of the shooting. The victim (an inmate at another California prison) signed a one-page statement in 2012 in which he recanted his 1995 identification of Petitioner as the shooter. The declaration further stated that the victim was pressured to identify Petitioner due to misconduct by the police and prosecutor handling the case. (Docket # 5 at 11.)

The Attorney General moved to dismiss the petition. (Docket # 13.) According to the motion, the petition is time-barred under AEDPA in its entirety because Petitioner's conviction has been final for many years. The Attorney General also contended that Petitioner's "actual innocence" claim was unexhausted because, among other reasons, Petitioner never presented the 2012 victim declaration to the state supreme court for consideration. (Docket # 13 at 19-20.)

In his response to the dismissal motion, Petitioner admitted that "Respondent is correct. This evidence has never been presented to the California Supreme Court. So therefore said Ground Two is partially unexhausted." (Docket # 18 at 12.) As a result, Petitioner acknowledged that his petition was mixed. Petitioner then expressly and unambiguously stated that he "would like to proceed only on the unauthorized sentence claim raised in [Ground One of the petition.] And the grounds unexhausted [involving his actual innocence claim in Ground Two] be dismissed and stricken for the record." (Id. (emphasis added).)*fn3

As to the timeliness of his federal petition, Petitioner relies solely upon state court decisions that allow a challenge to an unauthorized sentence to be raised "at any time." (Id. at 8, 9.) Petitioner cites no federal court authority in ...

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