United States District Court, C.D. California
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY AND EVIDENTIARY HEARING
JAMES V. SELNA, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation, and the remaining record, and has made a de novo determination.
Petitioner's Objections generally reiterate the arguments made in his Petition, and lack merit for the reasons set forth in the Report and Recommendation. There is one issue, however, that warrants brief amplification here.
Namely, in his Objections, Petitioner contends that he has presented sufficient new reliable evidence of actual innocence to justify consideration of his Petition despite its untimeliness. ( See Objections at 2, 17-19); see also McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013); Schlup v. Delo, 513 U.S. 298, 324 (1995).
Petitioner is mistaken.
First, the vast majority of Petitioner's "new evidence" relates to information that was available to Petitioner or his attorney at trial. For instance, Petitioner presents an affidavit from his wife that provides his alibi for an evening before the rape when, according to the victim, Petitioner had harassed her. ( See Objections at 11-12, 45.) However, at his trial thirteen years ago, both Petitioner and his attorney were aware of this supposed alibi. ( See id. at 45.)
Second, much of Petitioner's argument stems from perceived inconsistencies in the victim's testimony. Preliminarily, most of these inconsistencies relate to collateral matters, such as whether Petitioner threw a can at the victim's door or her window. ( See id. at 3-4.) Moreover, many of these inconsistencies would have been readily apparent to the jury, or were the subject of the victim's actual examination at trial. ( See id. at 7-8.)
Third, Petitioner places great stock in the fact that the victim underwent an abortion two weeks before the rape, and his argument that the abortion, rather than the rape, caused her alleged pain and bleeding. ( See id. at 13-14, 27-31.) However, this evidence fails to counter the victim's testimony - or the jury's finding - that Petitioner committed rape.
Fourth, as discussed in the Report and Recommendation, much of Petitioner's "new evidence" contains inherent reliability issues.
Thus, Petitioner fails to present sufficient new reliable evidence demonstrating his actual innocence. See Schlup, 513 U.S. at 324. As such, his Petition may not pass through the "actual innocence" gateway, and remains time-barred. See id.; 28 U.S.C. § 2244(d).
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
2. Judgment be entered denying the Petition and dismissing this action ...