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Anderson v. Chavez

United States District Court, Ninth Circuit

January 10, 2014

BRIAN D. ANDERSON, Petitioner,
v.
FRANK X. CHAVEZ, Warden, Respondent.

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY PURSUANT TO 28 U.S.C. § 2254 WITH PREJUDICE AS TIME-BARRED

ARTHUR NAKAZATO, Magistrate Judge.

Before the Court is Respondent's Motion to Dismiss ("MTD") [17] the pending petition for writ of habeas corpus by a person in state custody pursuant to 28 U.S.C. § 2254 ("Petition"). The parties have consented to the Magistrate Judge's jurisdiction. (See [2], [9], [15], [16].) For the reasons discussed below, the MTD is granted and the Petition is dismissed with prejudice because it is time-barred.

I. BACKGROUND

A. State Court Proceedings

On August 8, 1996, Brian D. Anderson ("Petitioner") was convicted of eight counts of second degree robbery (CAL. PENAL CODE § 211) and one count of assault with a firearm (CAL. PENAL CODE§ 245(a)(2)), following a jury trial in the California Superior Court for Los Angeles County (case no. GA015750). The jury also found true allegations that in the commission of all nine offenses, Petitioner personally used a handgun (CAL. PENAL CODE§ 12022.5(a)). Petitioner was acquitted of one count of second degree robbery. (Reporters' Transcript on Appeal ("RT") (Respondent's Lodged Document ("LD") 2) at 2857-62; Clerk's Transcript ("CT") (LD 1) at 2135-44.) Additionally, Petitioner admitted he had suffered one prior second-degree robbery conviction, which qualified as a "strike" under California's Three Strikes law (CAL. PENAL CODE§§ 667(b)-(i), 1170.12(a)-(d)), and as a serious felony for sentence enhancement purposes under CAL. PENAL CODE § 667(a). (RT at 2874-76; CT at 2172.) Petitioner was sentenced to a total term of fifty-six years and eight months in state prison. (RT at 2932-34; CT at 2185-87.)

Petitioner appealed his sentence to the California Court of Appeal. (LD 4.) On April 8, 1998, in an unpublished opinion (case no. B107735), the court of appeal affirmed the judgment. (LD 6.) Petitioner did not file a petition for review in the California Supreme Court. (Pet. at 3; MTD at 2.)

On February 6, 2007, Petitioner filed a habeas petition in the Los Angeles Superior Court raising two new sentencing claims. (LD 7.) On March 2, 2007, the superior court denied the petition. (LD 8 at 1-2.)

On December 19, 2011, Petitioner filed an additional habeas petition in the superior court, this time arguing that one of the witnesses at his trial, Eric Donaldson, was now retracting his testimony, and that constituted newly-discovered evidence of Petitioner's actual innocence on four of the nine counts of conviction. (LD 9.) On January 18, 2012, the superior court denied that petition on the basis that "[t]here were numerous witnesses who testified against the defendant at his trial and gave, what the jury found, substantial evidence ofhis guilt." (LD 8 at 2.)

On October 3, 2012, Petitioner filed a habeas petition in the California Court of Appeal raising the same arguments about Donaldson's allegedly false testimony and subsequent retraction. (LD 10.) On October 23, 2012, the state court of appeal denied the petition without comment or citation (case no. B244328). (LD 11.) On December 31, 2012, Petitioner filed a habeas petition in the California Supreme Court raising substantially the same arguments, and on May 22, 2013, that petition was denied without comment or citation (case no. S207690). (LD 12&13.)

B. Pending Proceedings

On September 3, 2013, Petitioner, proceeding pro se, constructively filed[1] the pending Petition raising three claims challenging his August 8, 1996 conviction as to four of the nine counts. All three claims are based upon the same allegedly newly-discovered evidence, i.e., that Donaldson is now retracting his testimony and claiming he was improperly coached by law enforcement to testify falsely. (Pet. at 5-6; attached pages (4); attached 11/26110 Hi-Caliber Investigations Witness Statement ("Witness Statement"); attached Declaration of Eric Donaldson ("Donaldson Decl.").) On December 4, 2013, Respondent filed the pending MTD arguing that the Petition should be dismissed because it is time-barred by more than fourteen years, and that Petitioner has failed to present a credible showing of actual innocence sufficient to constitute an equitable exception to the applicable one-year statute of limitation. (MTD at 11-23.) Petitioner has filed his Opposition to the MTD [19]. Because the Court finds in Respondent's favor, below, it is unnecessary that Respondent file a reply, and the matter now stands ready for decision.

II. DISCUSSION

A. Statute of Limitations

The Petition is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which establishes a one-year statute of limitations for state prisoners to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). In most cases, the limitations period is triggered by "the date on which the judgment became final by conclusion of ...


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