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Ziskin v. Spearman

United States District Court, S.D. California

April 13, 2015

PETER T. ZISKIN, Petitioner,
MARION SPEARMAN, Warden, Respondent.


THOMAS J. WHELAN, District Judge.

On April 29, 2014, Petitioner Peter T. Ziskin, a state prisoner proceeding with counsel, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (the "Petition") challenging his conviction for seventeen felony counts of committing a lewd act upon a child in violation of California Penal Code § 288(a). ( Pet. [Doc. 1] 1-2.)[1] Petitioner received a sentence of fifteen years to life on each count to run concurrently. (Id. at 1.) On June 3, 2014, Respondent moved to dismiss the Petition, arguing that it should be dismissed with prejudice because it is barred by the statute of limitations under 28 U.S.C. § 2244(d) ( MTD [Doc. 8]). Petitioner opposed. ( Pet'r's Opp'n [Doc. 12].)

On February 5, 2015, United States Magistrate Judge Jan M. Adler issued a Report and Recommendation (the "Report") recommending that the Petition be dismissed with prejudice. ( Report [Doc. 13].) Thereafter, Petitioner objected to the Report. ( Pet'r's Obj. [Doc. 16].) Respondent did not reply to Petitioner's objections.

The Court has considered the matter on the papers filed and without oral argument. See S.D. Cal. Civ. L. R. 7.1(d.1). For the reasons discussed below, the Court ADOPTS the Report with some additional explanation, GRANTS Respondent's motion and DISMISSES the Petition WITH PREJUDICE, and DENIES a certificate of appealability.


The parties do not dispute the facts as presented in the Report. Thus, the Court will cite to the Report and briefly summarize those facts here.

In 2004 and 2005, Petitioner was employed as a teacher at Rincon Middle School in Escondido, California. ( Report 10:17-18.) After a series of events that occurred during Petitioner's employ at the school, Petitioner was charged with twenty-six counts of lewd act upon a child in violation of California Penal Code Section 288(a). (Id. at 2:1-5.) The following is a condensed summary of the evidence presented at trial[2]:

Ziskin's male students would frequently wrestle with him, initiating the activity by jumping on him and laughing. Ziskin would lift the boys up, flip them over his shoulder, and spin them around. The lewd touching typically occurred during the course is this activity.
On January 14, 2005, instructional aide Nancy Kramar was in Ziskin's classroom assisting students. After the bell rang and only a few students were in the classroom, Kramar saw Ziskin pick up a boy and swing him around, with his hand touching "outside [the boy's] pants in the area of the crotch." Kramar felt uncomfortable about her observation. On January 18, 2005, Kramar went to Ziskin's classroom during Ziskin's lunch period to leave him a message about a change in her assignment. When she walked into the classroom, Ziskin was holding a boy (David) on his shoulders and spinning the boy around. When Ziskin saw Kramar, he put the boy down. Kramar saw Ziskin's hand "struggle a couple of times as he tried to get his hand out of the boy's pants." Kramar observed Ziskin's hand was "pretty deep" inside the front of David's pants because he had to struggle to get it out. There were no other people in the room other than Ziskin and David. Kramar reported the incidents to the school administration.
During the ensuing investigation, numerous boys (including David) revealed that on some occasions while wrestling with Ziskin in the classroom, Ziskin put his hand in their pants and touched their penises.
In his defense, Ziskin presented numerous character witnesses who testified that they frequently observed Ziskin play with children and never observed any inappropriate touching. Further, two defense experts (Dr. Phillip Esplin and Thomas Streed) testified regarding factors that affect memory and create suggestibility. During its rebuttal case, the prosecution presented four taped interviews of the victims that were made during the case investigation. In surrebuttal, Dr. Streed opined that one of the taped interviews was conducted in a suggestive manner.

(Id. at 10:18-13:11 (quoting Ziskin, No. D049152, slip op. at 2-7).)

On May 31, 2006, a jury convicted Petitioner of seventeen of the twenty-six counts. ( Report 2:7-10.) The trial court sentenced Petitioner to fifteen years to life on each of the seventeen counts, to run concurrently. (Id. at 2:14-17.) Thereafter, Petitioner appealed. The California Court of Appeal affirmed the convictions and sentence on April 23, 2008. (Id. at 2:18-20.) After Petitioner sought rehearing of that decision, the appellate court modified its opinion and denied rehearing of the appeal on May 8, 2008. Petitioner subsequently sought review before the California Supreme Court. The petition for review was denied without comment on July 23, 2008. (Id. at 2:20-25.)

Next, Petitioner filed his state habeas petition with the San Diego Superior Court on October 22, 2009. It was ultimately denied on April 27, 2012 after an evidentiary hearing was conducted in early 2012. ( Report 2:26-3:4.) On August 14, 2012, Petitioner filed a habeas petition with the California Court of Appeal. It was denied on October 3, 2012. Then, Petitioner filed a petition for review with the California Supreme Court. On December12, 2012, it too was denied. (Id. 3:11-16.)

Petitioner filed the instant Petition with this Court on April 29, 2014, in which he set forth four claims: (1) ineffective assistance of counsel based on trial counsel's failure to advise him of his right to testify; (2) actual innocence based on newly discovered evidence; (3) prosecutorial misconduct based on the prosecutor's failure to disclose exculpatory evidence; and (4) deprivation of Due Process based on the trial court's error in allowing the prosecutor to shift the burden of proof. ( Pet. 9-12.) On June 3, 2014, Respondent moved to dismiss the petition as untimely. ( See MTD. ) Thereafter, Petitioner filed his opposition. ( See Pet'r's Opp'n. )

On February 5, 2015, Magistrate Judge Adler issued the Report recommending that this Court grant Respondent's motion and dismiss the Petition as untimely. ( See Report. ) On March 3, 2015, Petitioner filed his objections. ( See Pet'r's Obj. ) Respondent did not file a reply.


The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "shall make a de novo determination of those portions of the report... to which objection is made, " and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (holding that 28 U.S.C. 636(b)(1)(c) "makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise" (emphasis in original)).


Petitioner objects to the Report on three grounds. First, Petitioner contends the Report's finding that equitable tolling does not apply is based on conclusory analysis ignoring relevant facts in the record and in Mr. Dunn's original declaration accompanying the Petition. ( See Pet'r's Obj. 1:22-5:22.) Second, Petitioner objects to the Report because it purportedly uses an "assumed lack of diligence" on the part of Petitioner to defeat the application of the "actual innocence" exception to the AEDPA's statute of limitations. (Id. at 5:23-6:6 (citing McQuiggin v. Perkins, 133 S.Ct. 1924 (2013)).) Third, Petitioner argues that the Report uncritically and unreasonably accepts prosecution evidence, and improperly rejects new defense evidence in a conclusory fashion. (Id. at 6:7-8:25.) The Court addresses each of these objections in turn below.

A. Petitioner's Objection to the Report's Equitable Tolling Analysis

Petitioner first contends that he "has never conceded the issue of whether equitable tolling applies."[3] ( Pet'r's Obj. 1:27-28.) In his opposition to Respondent's motion, Petitioner stated: "Whether equitable tolling.... might apply... is not the issue presented here. That Petitioner has not relied on statutory or equitable tolling is made clear in the Petition and the Declaration attached to it." ( Pet'r's Opp'n 4:1-4.) Then, in a footnote, Petitioner explained he was " not conceding the point about whether equitable tolling would be appropriate here." (Id. 4 n.2.) Instead, he explained that "the Petition was prompted by newly discovered evidence which demonstrates Petitioner's factual innocence and premised on the exception discussed in McQuiggin." (Id. )

Now, in his objection to the Report, Petitioner argues that the Report improperly seizes on the above statements. ( Pet'r's Obj. 1:28-2:5 (quoting Pet'r's Opp'n 4 n.2).) Petitioner claims that while the Petition is premised on evidence of actual innocence, he "has never suggested that equitable tolling should not be applied." (Id. at 2:6-8 (emphasis added).) Petitioner cites the record, Mr. Dunn's original declaration attached to the Petition, Mr. Dunn's supplemental declaration, [4] and evidence provided along with his objections, as support for his conclusion that equitable tolling does apply. Based on these contentions, Petitioner claims that he never waived the equitable tolling issue, and that the Magistrate or this Court should reassess the issue. (Id. at 5:14-22.)

1. AEDPA's Statute of Lim itations and Statutory Tolling

Under the AEDPA, "a state prisoner seeking a federal habeas corpus remedy [must] file his federal petition within one year after his state conviction has become final.'" Carey v. Saffold, 536 U.S. 214, 216 (2002). As ...

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