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Martinez v. Biter

United States District Court, C.D. California

November 21, 2014


For Rigoberto Martinez, Petitioner: Carlos Joel Perez, LEAD ATTORNEY, The Defenders Law Group, Los Angeles, CA.



This Report and Recommendation is submitted to the Hon. Otis D. Wright, II, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, it is recommended that the Petition be denied and the action be dismissed with prejudice.



A. State and Federal Court Proceedings

In December 2008, a jury in Los Angeles County Superior Court found Petitioner guilty of attempted murder. (Petition at 2.) The jury also determined that a principal intentionally discharged a firearm causing great bodily injury and that the crime was committed for the benefit of a criminal street gang. (Petition at 2.) In February 2009, he was sentenced to life plus 25 years in prison. (Petition at 2.)

Petitioner appealed to the California Court of Appeal, which affirmed his conviction in November 2010. (Petition at 2.) He then filed a petition for review in the California Supreme Court, which was denied on February 16, 2011. (Petition at 3.)

On May 16, 2012, Petitioner, who was represented by counsel, filed a petition in this court, pursuant to 28 U.S.C. § 2254, raising six grounds for relief that he had presented to the state courts plus additional claims that he acknowledged had not been raised there. Petitioner moved to have the Court stay the proceedings so that he could exhaust the unexhausted claims in state court and then return to pursue all of his claims. The Court denied the motion, leaving him with the option of pursuing only his exhausted claims in federal court or dismissing the action, returning to the state court to exhaust his remaining claims, and then re-filing in this court. Martinez v. Biter, CV 12-4274-ODW (PJW) (March 12, 2013 Order). Petitioner and his counsel were warned that his Petition was subject to a one-year statute of limitations and that the time his case had been pending in federal court did not toll the statute. Petitioner elected to dismiss the Petition and, on April 8, 2013, the Court granted his request. Martinez v. Biter, CV 12-4274-ODW (PJW) (Judgment).

Thereafter, Petitioner returned to state court to exhaust his additional claims. On January 13, 2014, the Los Angeles Superior Court denied Petitioner's habeas corpus petition. (Petition at 3.) On February 18, 2014, the California Court of Appeal denied his petition, and on April 9, 2014, the California Supreme Court denied his petition. (Petition at 3.)

B. Pending Federal Petition

On April 30, 2014, Petitioner, represented by counsel, filed the instant Petition in this Court, pursuant to 28 U.S.C. § 2254. In it, he claims that his conviction was the result of perjured testimony, which he attempts to establish through the victim's declaration recanting his trial testimony. He also alleges that his appellate counsel was ineffective for failing to argue that trial counsel's representation was ineffective and that Petitioner's statement to police was the product of a coercive interrogation. (Petition at 4-5.)

On May 1, 2014, the Court issued an Order to Show Cause as to why the Petition should not be dismissed on the ground that it was untimely. See Mayle v. Felix, 545 U.S. 644, 656, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) (finding district court has duty to screen petitions before service); see also Day v. McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) (approving district court's sua sponte examination of petition for timeliness). On July 3, 2014, Petitioner filed a response to the order to show cause, conceding that the Petition was not filed within one year of the state court judgment becoming final but arguing that it should still be considered because of " newly discovered facts that show a high probability of actual innocence." (Petitioner's Response to the Order to Show Cause (" Response") at 2.)



A. The Statute of Limitations

State prisoners seeking to challenge state convictions in federal habeas corpus proceedings are subject to a one-year statute of limitations. 28 U.S.C. § 2244(d). Here, Petitioner's conviction became final on May 17, 2011, 90 days after the California Supreme Court denied his petition for review and the time expired for him to file a petition for writ of certiorari in the United States Supreme Court. See, e.g., Brambles v. Duncan, 412 F.3d 1066, 1069 (9th Cir. 2005). Therefore, the statute of limitations expired one year later, on May 17, 2012. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner, however, did not file this Petition until April 30, 2014, almost two years after that deadline. Absent tolling, the Petition is untimely and must be dismissed.

B. Statutory Tolling

The statute of limitations is tolled during the time " a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). Here, Petitioner filed his first habeas corpus petition in state court sometime after October 2013.[1] By that time, the statute of limitations had already expired. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (" [S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed."); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (holding that state habeas petition filed after expiration of AEDPA limitation period could not toll limitation period " because the limitations period had already run"). Accordingly, statutory tolling does not save the Petition.

C. Equitable Tolling

The statute of limitations is subject to equitable tolling if a petitioner can show that he has been diligently pursuing his claims but that " extraordinary circumstances" prevented him from filing on time. Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir. 2010) (citing Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010)). Petitioner, however, does not claim entitlement to equitable tolling and there is no basis for such a finding in the record before the Court.

D. Actual Innocence

Petitioner contends that he has new evidence that proves that he is actually innocent and argues that the Court should overlook the late filing and allow him to proceed. (Response at 1-6.) For the following reasons, the Court rejects this argument.

Though there is an actual innocence exception to the statute of limitations, McQuiggin v. Perkins, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013), in order to qualify for it, a petitioner " must produce sufficient proof of his actual innocence to bring him within the narrow class of cases . . . implicating a fundamental miscarriage of justice." Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc) (internal quotation marks omitted). In other words, a petitioner must produce new, reliable evidence, such as exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence, demonstrating that he is factually innocent. Schlup v. Delo, 513 U.S. 298, 324, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). While a petitioner is not required to demonstrate his innocence to an " absolute certainty, " he must show " that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Lee, 653 F.3d at 938. Because Petitioner has not done so here, he does not qualify for the actual innocence exception to the statute of limitations.

In support of his argument, Petitioner has proffered a declaration by the victim of the attempted murder, Rosalio Velasquez, purportedly recanting his trial testimony.[2] (Petition, Attachment 2 (Declaration of Rosalio Velasquez (" Velasquez Declaration")).) According to Velasquez, he told police after being shot that he " did not remember the face of the shooter, " but the police threatened to imprison or deport him if he did not say that Petitioner was the shooter. (Velasquez Declaration.) He states that his testimony at trial was " false and not the truth" and that an " innocent person is in jail." (Velasquez Declaration.) For the following reasons, the Court does not find this evidence to be enough to establish that Petitioner is entitled to proceed under the actual innocence exception to the statute of limitations.

First, post-trial declarations recanting previous trial testimony are " properly viewed with great suspicion" because they are " often unreliable" and done for " suspect motives." Dobbert v. Wainwright, 468 U.S. 1231, 1233-34, 105 S.Ct. 34, 82 L.Ed.2d 925 (1984) (Brennan, J., dissenting from denial of certiorari); Allen v. Woodford, 395 F.3d 979, 994 (9th Cir. 2005); see also Herrera v. Collins, 506 U.S. 390, 423, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (O'Connor, J., concurring) (finding affidavits made many years after trial, purporting to exculpate a convicted prisoner by offering a new version of events, are " not uncommon" and " are to be treated with a fair degree of skepticism"); Carriger v. Stewart, 132 F.3d 463, 483 n.1 (9th Cir. 1997) (" There is no form of proof so unreliable as recanting testimony.... Those experienced in the administration of the criminal law know well its untrustworthy character.") (Kozinski, J., dissenting). Moreover, neither Petitioner or Velasquez provides any reasonable explanation as to why Velasquez has come forward with this " new evidence" nearly five years after he testified at Petitioner's trial. See Jones v. Taylor, 763 F.3d 1242, 1249 (9th Cir. 2014) (noting recantations made " long after trial" with " no explanation for their delay in coming forward" reduce the weight and reliability of the evidence); see also Christian v. Frank, 595 F.3d 1076, 1084 n.11 (9th Cir. 2010) (noting witness's recantation was " especially unreliable given that it was made more than a decade after his original [testimony]"). Accordingly, the Court views Velasquez's declaration with a fair degree of skepticism.

Second, even if Velasquez's declaration is authentic and credible, it falls far short of establishing Petitioner's innocence. The fact that a witness has recanted previous trial testimony does not necessarily mean that he perjured himself at trial or that his prior testimony was false. See Allen, 395 F.3d at 994 (finding witness's " later recantation of his trial testimony does not render his earlier testimony false"). More importantly, Velasquez's new statement that Petitioner was not the person who shot him does not exonerate Petitioner. Because it could not be definitively established whether Petitioner or co-defendant Bryan Zambrano shot Velasquez, the prosecution argued that, at a minimum, Petitioner aided and abetted Zambrano in the attempted murder of Velasquez. (Reporter's Transcript (" RT") 784-91.) Thus, Velasquez's declaration that Petitioner was not the shooter does not undermine Petitioner's conviction.

Finally, other evidence at trial implicating Petitioner makes it clear that Velasquez's recantation is not enough for Petitioner to satisfy the Schlup standard. See Lee, 653 F.3d at 938 (holding habeas court must consider all the evidence, old and new, and make a probabilistic determination of what the jury would do). On the night he was shot, Velasquez told police that one of the two men who had approached him had a " blurry shadow" or mark on the side of his neck--which was consistent with the location of a tattoo of a rabbit's head on Petitioner. (RT 460-61, 464-66, 471-73, 506.) Velasquez also said that, just before the shooting, one of the two men yelled " Playboy" --a reference to Petitioner's gang. (RT 502.) Further, Petitioner admitted to police that he was at the scene of the shooting and that he believed that there were rival gang members in the area. (RT 813-16, 850.) This evidence, which is consistent with Velasquez's initial claim that Petitioner was one of the people who approached him when he was shot, further undermines the credibility of Velasquez's much later, conclusory declaration that Petitioner was " innocent." See Allen, 395 F.3d at 994 (finding witness's " recantation testimony is even more unreliable because his trial testimony implicating [defendant] is consistent with the other evidence, while his recantation is not"). In the end, the Court concludes that Petitioner simply has not shown that it is more likely than not that no reasonable juror would find him guilty beyond a reasonable doubt even after considering Velasquez's recent declaration. For this reason, Petitioner is not entitled to the actual innocence exception to the statute of limitations. See Lee, 653 F.3d at 937. Accordingly, because the Petition is untimely and Petitioner has not established any basis for overlooking the statute of limitations, the Petition must be dismissed.



For these reasons, IT IS RECOMMENDED that the Court issue an Order (1) accepting this Report and Recommendation and (2) directing that Judgment be entered denying the Petition and dismissing the case with prejudice.[3]

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