United States District Court, C.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable John A. Kronstadt, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
In 2008, a Superior Court jury found Petitioner guilty of conspiracy to commit kidnapping for ransom, attempted kidnapping for ransom and assault with a semiautomatic firearm, and found true the allegation that a principal in the attempted kidnapping was armed with a firearm (Respondent's Lodgment 2). The Court of Appeal affirmed Petitioner's conviction (Respondent's Lodgment 5; see People v. Khrayan, 2012 WL 1077654 (Cal.App. Apr. 2, 2012)). On June 27, 2012, the California Supreme Court denied Petitioner's petition for review (Respondent's Lodgment 7).
Petitioner, represented by counsel, filed herein a "Petition for Writ of Habeas Corpus By a Person in State Custody, " which bears a "filed" stamp of October 2, 2013. Respondent filed a "Motion to Dismiss Petition, etc." on November 7, 2013, asserting that the Petition is untimely and partially unexhausted. Petitioner filed an "Opposition to Motion to Dismiss Petition, etc." ("Opposition") on December 6, 2013, accompanied by the Declaration of Eliseo Benitez ("Benitez Dec.") and exhibits.
In the present Petition, Petitioner contends: (1) the trial court allegedly violated Due Process by denying Petitioner's motion for a new trial based on "newly discovered" evidence; (2) the prosecution allegedly suppressed assertedly exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83 (1963); and (3) the prosecution allegedly violated Due Process by assertedly destroying evidence and failing to disclose the alleged destruction to the defense during trial.
By way of background, Petitioner's counsel asserted in the trial court on the date set for sentencing that counsel had received an anonymous letter in a police department envelope stating that certain items relating to the case had been destroyed (see Respondent's Lodgment 5, p. 16). After an evidentiary hearing, the trial court denied Petitioner's ensuing motion for a new trial (id., pp. 18-22). In upholding this denial, the California Court of Appeal stated that Petitioner's counsel himself had utilized at trial photocopies of many of the allegedly destroyed items and counsel had never requested that the originals be preserved or produced in court (with the exception of a single photograph of which counsel had a copy) (id., p. 23). The Court of Appeal ruled that the items in question were merely cumulative of the evidence presented at trial, that the fact of the destruction of the originals "constituted only impeachment evidence at best, " and that neither the items nor the fact of the originals' destruction rose "to the level of material evidence" (id.).
The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners:
(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 ...