FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By this action, petitioner challenges a judgment of conviction entered against him in the Sacramento County Superior Court in 2007. This matter is now before the court on respondent's motion to dismiss the action as barred by the applicable statute of limitations.
On September 29, 1997, petitioner was convicted in the Sacramento County Superior Court on two counts of assault with an assault rifle, two counts of assault with a semi-automatic firearm, unlawful possession of an assault rifle, two counts of being a felon in possession of a firearm, and possession of marijuana for sale. (Lodged Doc. No. 1.) Thereafter, he was sentenced to a determinate state prison term of thirty-five years and four months.*fn1 On June 28, 2001, the California Court of Appeal for the Third Appellate District affirmed the judgment of conviction. (Lodged Doc. No. 2.) On September 26, 2001, the California Supreme Court denied a petition for review. (Lodged Doc. No. 4.)
Petitioner subsequently filed three state habeas petitions collaterally attacking his conviction. On December 13, 2002, he filed a petition for writ of habeas corpus in the Sacramento County Superior Court. (Lodged Doc. No. 5.) That petition was denied by order dated January 16, 2003. (Lodged. Doc. No. 6.) On August 20, 2007, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Lodged. Doc. No. 7.) On February 13, 2008, that petition was denied as untimely. (Lodged. Doc. No. 8.) On June 24, 2011, petitioner filed another petition for writ of habeas corpus in the California Supreme Court, for the first time claiming that newly discovered evidence established his actual innocence of the crimes for which he was convicted. (Lodged. Doc. No. 9.) On November 16, 2011, that petition was also denied on untimeliness grounds, with the California Supreme Court citing the decisions in In re Robbins, 18 Cal. 4th 770, 780 (1998) and In re Miller, 17 Cal. 2d 734, 735 (1941). (Lodged. Doc. No. 10.)
On January 23, 2012, the instant federal habeas petition was filed in this court. (Docket No. 1.) Therein, it appears that petitioner seeks federal habeas relief on the basis of all claims he presented to the California Supreme Court in 2007 as well as on his actual innocence claim presented to and rejected by the California Supreme Court in 2011. (Id. at 4.)
In moving to dismiss, respondent argues that the instant petition is time-barred. Specifically, respondent argues that even taking into account tolling stemming from petitioner's filing of his first state habeas petition, the statute of limitations for filing a federal petition expired on January 29, 2003. Respondent asserts that petitioner's filing of additional habeas petitions in state court thereafter did not act to revive the already expired federal statute of limitations. (Resp't's Mot. to Dism. (Docket No. 15) at 2-5.)
Respondent also argues that petitioner is not entitled to equitable tolling under the "fundamental miscarriage of justice" doctrine announced in Schlup v. Delo, 513 U.S. 298 (1995), because petitioner has not presented a viable claim of actual innocence. Specifically, respondent asserts that the evidence petitioner "claims demonstrates his innocence is neither newly discovered nor clearly exculpatory." (Resp't's Mot. to Dism. (Docket No. 15) at 9.) Respondent also argues that petitioner's claim of entitlement to equitable tolling of the statute of limitations "fails because his proffered evidence merely seeks to undercut incriminating evidence presented at trial; it falls short of fundamentally calling into question the reliability of his conviction." (Id.)
In opposition to the pending motion to dismiss, petitioner does not argue that his petition was filed within the applicable statute of limitations. Rather, petitioner contends that he is entitled to equitable tolling of that limitations period. He argues that the court should reach the merits of his petition because the supporting declarations he has submitted from Anthony Edwards, Angela Cofield, Kati M. Redmond, and himself establish his actual innocence, under Schlup*fn2 , with respect to the charges upon which he was convicted. Petitioner also asserts that the truth of those declarations must be presumed for purposes of determining whether his petition is time-barred. (Docket No. 18 at 8-9.)
In reply respondent reiterates his argument that petitioner has failed to offer newly discovered evidence establishing his actual innocence. Respondent asserts that the declarations offered by petitioner do not refute the evidence introduced at his trial and do not establish that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt had that new evidence been presented at his trial. (Docket No. 19.)
I. AEDPA Statute of Limitations
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a one-year period of limitation applies to a petition for writ of habeas corpus filed in federal court by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1). The statute of limitations applies to all federal habeas petitions filed after the statute was enacted on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under § 2244(d)(1)(A), the time for petitioner to file a federal habeas petition began running when his judgment of conviction became final. In this regard, on September 26, 2001, the California Supreme Court denied review of petitioner's case. (Lodged Doc. No. 4.) His conviction became final ninety days thereafter, on December 25, 2001, when the time for him to file a petition for certiorari with the United States Supreme Court expired. See Bowen v. Roe, 1888 F3d 1157, 1158-59 (9th Cir. 2001). The one-year limitations period for his seeking of federal habeas relief started the next day, December 26, 2001, and, absent any tolling, expired on December 26, 2002. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
The AEDPA statute of limitations is tolled during the pendency of any "properly filed" state collateral attack on the judgment. Nino v. Galaza, 183 F.3d 1003, 1006-07 (9th Cir. 1999). Furthermore, the intervals between stages of California's "unusual system of collateral review" will toll the federal limitations period as long as the intervals are each of reasonable duration. Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010). Petitioner did not file his first state habeas petition in the Sacramento County Superior Court until December 13, 2002. Therefore, 352 days of the one-year limitations period for petitioner's seeking of federal habeas relief had expired before being tolled upon the filing of that petition. The Sacramento County Superior Court denied that first state petition on January 16, 2003, causing the limitations period for the filing of a federal petition to begin running again the next day. Given this thirty-five day period of statutory tolling, petitioner then had until January 29, 2003 to seek federal habeas relief.
Over four and half years later, on August 20, 2007, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Lodged. Doc. No. 7.)*fn3 By then the statute of limitations for the seeking of federal habeas relief had long-since expired. The same is true with respect to the third state habeas corpus petition filed by petitioner in the California Supreme Court on June 24, 2011. (Lodged. Doc. No. 9.) This is so because the filing of a new state habeas petition cannot reinitiate or revive the limitations period once it has expired. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); see also Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). Thus, petitioner's federal habeas corpus petition filed in this court on January 19, 2012, was submitted almost nine years after the one-year statute of limitations for doing so had expired. Petitioner must show that he is entitled to statutory or equitable tolling of the statute of limitations set forth by AEDPA, otherwise his claims are time barred.
As noted above, petitioner does not dispute that his pending federal habeas corpus petition was filed outside the statutory period. Nor does he argue that he is entitled to statutory tolling. Rather, he asserts only that he has made a sufficient showing of his actual innocence so as to entitle him to equitable tolling of the AEDPA's statute of limitations.
II. Equitable Tolling on the Grounds of Actual Innocence
The United States Supreme Court has confirmed that the AEDPA statute of limitations "is subject to equitable tolling in appropriate cases." Holland v. Florida, ___U.S.___, ___,130 S. Ct. 2549, 2560 (2010). See also Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011); Lakey v. Hickman, 633 F.3d 782, 784 (9th Cir. 2011); Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010).*fn4 Indeed, because § 2244(d) is not jurisdictional, it is "subject to a 'rebuttable presumption' in favor of 'equitable tolling'" Holland, 130 S. Ct. at 2560 (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990)). See also Lee v. Lampert, 653 F.3d 929, 933 (9th Cir. 2011) (en banc). "[A] credible claim of actual innocence constitutes an equitable exception to AEDPA's limitations period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits." Lee, 653 F.3d at 932.
Generally a federal habeas petitioner "is 'entitled to equitable tolling' only where he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing."*fn5 Holland 130 S. Ct. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). See also Doe, 661 F.3d at 1011; Lakey, 633 F.3d at 784; Porter, 620 F.3d at 959; Harris v. Carter, 515 F.3d 1051, 1054 (9th Cir. 2008); Stillman v. LaMarque, 319 F.3d 1199, 1202 (9th Cir. 2003). However, neither the Supreme Court nor the Ninth Circuit have held that a showing of diligence is needed to pass through the actual innocence gateway and other courts to address the subject have specifically held that diligence need not be shown in such circumstances. See Lampert, 653 F.3d at 935 n. 9 ("Because this case does not present the question, we need not-and do not-decide what diligence, if any, a petitioner must demonstrate in order to qualify for the actual innocence exception recognized in this opinion."); see also Perkins v. McQuiggin, 670 F.3d 665 (6th Cir. 2012) (holding that reasonable diligence need not be shown when seeking equitable tolling of the statute of limitations due to actual innocence); Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010) ("We thus reject the reading of our precedent that would require a habeas petitioner seeking equitable tolling on actual innocence grounds to demonstrate that he diligently pursued his actual innocence claim."); Souliotes v. Hedgpeth, No. 1:06-cv-0667 AWI MJS HC, 2012 WL 2684972, at *4 (E.D. Cal. July 6, 2012) ("The court agrees . . . that there is no diligence requirement to present an actual innocence claim as to overcome the AEDPA's statute of limitations.) Accordingly, the court will not consider whether petitioner has been diligent in presenting his actual innocence claim.
To obtain equitable tolling of the AEDPA statute of limitations in order to present an actual innocence claim based on newly discovered evidence, a petitioner must demonstrate "that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt." Lampert, 653 F.3d at 938.*fn6 Moreover, "[a]ctual innocence means factual innocence, not mere legal insufficiency." Bousley v. United States, 532 U.S. 614, 623 (1998). In this regard, the Ninth Circuit has observed:
Schlup requires a 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." Schlup, 513 U.S. at 324, 115 S. Ct. 851. The habeas court then "consider[s] all the evidence, old and new, incriminating and exculpatory," admissible at trial or not. House, 547 U.S. at 538, 126 S. Ct. 2064 (internal quotation marks omitted); Carriger [v. Stewart], 132 F.3d [463,] 477--78 [(9th Cir. 1997)]. On this complete record, the court makes a " 'probabilistic determination about what reasonable, properly instructed jurors would do.' " House, 547 U.S. at 538, 126 S. Ct. 2064 (quoting Schlup, 513 U.S. at 329, 115 S. Ct. 851).
Lampert, 653 F.3d at 938. The court "must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial," and "may consider how the timing of the submission and the likely credibility of the affiants bears on the probable reliability of that evidence." Schlup, 513 U.S. at 332.
Below, after providing a summary of the evidence introduced at petitioner's trial which resulted in his conviction, the court will apply these legal standards to the arguments of the parties in determining whether petitioner's actual innocence claim is credible enough to entitle him to equitable tolling of the AEDPA statute of limitations.
I. Summary of Evidence Introduced at Petitioner's Trial
Neither petitioner nor respondent dispute the statement of facts as set forth by the California Court of Appeal in its opinion affirming petitioner's judgment of conviction. That court recounted the evidence as follows:
This case involves a series of shooting incidents between members of two rival gangs in the Valley Hi area of Sacramento: the Valley Hi Crips and the Valley Hi Pirus. (The Pirus are affiliated with a gang known as the Bloods, the traditional rivals of the Crips.) Defendant was a member of the Crips.
At about 4:30 p.m., February 19, 1997, Priscilla Lopez was at the front door of her apartment in the Country Wood Village Apartments. She noticed a man and woman outside arguing. Lopez recognized the woman as a resident of the complex. The man and woman were later identified as defendant and his wife, Kati Redmond. Lopez then heard four shots fired, and saw defendant run past her apartment. He was holding a pistol. Lopez saw defendant turn and fire one shot as he ran through the ...