United States District Court, C.D. California
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
HONORABLE DAVID O CARTER UNITED STATES DISTRICT JUDGE
to 28 U.S.C. § 636, the Court has reviewed the Petition
for Writ of Habeas Corpus by a Person in State Custody
(“Petition”) and accompanying documents, the
submissions in connection with the Motion to Dismiss the
Petition, and all of the records herein, including the
February 2, 2017 Report and Recommendation of United States
Magistrate Judge (“Report and Recommendation”),
and petitioner's objections to the Report and
Recommendation (“Objections”). The Court has
further made a de novo determination of those
portions of the Report and Recommendation to which objection
is made. The Court concurs with and accepts the findings,
conclusions, and recommendations of the United States
Magistrate Judge and overrules the Objections.
Objections do not address the primary recommendation of the
Report and Recommendation - that the Petition should be
dismissed without prejudice for lack of jurisdiction because
it is “second or successive, ” and petitioner has
not obtained the requisite authorization from the Court of
Appeals to file it. Instead, petitioner's Objections
focus entirely on the alternative recommendation that his
claims be dismissed with prejudice as untimely to the extent
the Court has jurisdiction over them. Although the Court
overrules the Objections in their entirety, it further
addresses below certain of petitioner's contentions
regarding the statute of limitations analysis in the Report
Objections, construed liberally, can be read to assert that
petitioner is entitled to delayed accrual of the statute of
limitations or equitable tolling of the statute because
petitioner was without his state court transcripts until
September 2010. See Objections at 2-5. However, even
assuming that petitioner is entitled to delayed accrual or
tolling of the statute of limitations until September 30,
2010, the Petition is still untimely. Petitioner did not
constructively file his First State Petition (which could
have triggered statutory tolling) until September 7, 2012 -
almost one year after the statute of limitations would have
run on September 30, 2011 - and did not constructively file
the instant Petition until December 9, 2015.
liberally, the Objections also can be read to challenge the
Magistrate Judge's finding that petitioner did not meet
the requirement for a gateway actual innocence claim under
Schlup v. Delo, 513 U.S. 298 (1995). Petitioner
argues that the Magistrate Judge misstated the trial evidence
in considering the reliability of petitioner's proffered
evidence of innocence. He alleges that the victim B.H.'s
older sister Washanda (petitioner's daughter) did not
testify that petitioner came into the bedroom where B.H. was
on August 6, 2000 and that Washanda instead testified she was
not in the same house that night with David Johnson and B.H.
See Objections at 5-9 (referencing the Report and
Recommendation at 17-18 (finding petitioner's evidence of
purported innocence not sufficiently reliable for
consideration of his actual innocence claim in light of
conflicting trial testimony from B.H. and her sister)).
petitioner is correct that Washanda testified at trial that
she was not present on August 6, 2000, and denied walking in
on petitioner and B.H. or telling the police what happened
(see Reporter's Transcript lodged in the 2010
Case (“RT”) 20-22), her prior inconsistent
statements to the police on the night in issue were
introduced at trial and corroborated the testimony of the
victim, B.H. (see RT 34-41 (B.H.'s testimony);
RT 302-09 (detective's testimony)).
specifically, B.H. testified that the following occurred on
August 6, 2000: B.H. woke up to petitioner “feeling
on” her and she said “get off of me, ” but
petitioner did not get off of her - he grabbed her by her
wrists and held her arms over her head and
“kissed” her lower body. (RT 36-38). B.H. said,
“stop, stop, get off me, ” and Washanda walked in
and told petitioner, “get off, stop, get off of
her.” (RT 38-41). Petitioner then ran away. (RT 40).
The police then came to the house where B.H. was staying. (RT
upon his contemporaneously prepared police report, a police
detective testified that on that same night, Washanda told
him the following: Washanda called the police because she
walked in on petitioner in a bedroom with B.H. (RT 305-09).
Petitioner had told B.H. to go to the bedroom and when
petitioner went to the bedroom too it seemed odd to Washanda,
so Washanda went outside and looked in a window to the
bedroom where she saw a blanket moving around and heard B.H.
saying, “no, no, no.” (RT 307). Washanda came
back inside the house and went in the bedroom where she saw
petitioner and B.H. lying on a mattress under a blanket. (RT
307-08). A cousin, Devon, was on one side of the mattress.
(RT 308). Washanda pulled the blanket off petitioner and B.H.
and saw that B.H.'s pants were down at her knees and
petitioner was shirtless and on his stomach. (RT 308-09).
the evidence adduced at trial, including Washanda's
denial about what she reported happened to B.H. on August 6,
2000, the Court finds that petitioner's evidence of his
purported innocence is not so convincing or reliable for the
Court to conclude that no juror, acting reasonably, would
have found petitioner guilty beyond a reasonable doubt.
Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir.
2008), cert. denied, 445 U.S. 1211 (2009).
THEREFORE ORDERED: (1) the Motion to Dismiss the Petition is
granted; (2) the Petition is dismissed without prejudice for
lack of jurisdiction because it is second or successive and
petitioner has not obtained the requisite authorization from
the Court of Appeals to file it; (3) the Clerk shall refer
the Petition to the United States Court of Appeals for the
Ninth Circuit pursuant to Ninth Circuit Rule 22-3(a); and (4)
alternatively, in the event this Court is deemed to have
jurisdiction over any of the claims in the Petition, such
claims are dismissed with prejudice because they are
FURTHER ORDERED that the Clerk serve copies of this Order,
the Report and Recommendation, and the Judgment herein ...