United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS; DENYING CERTIFICATE
OF APPEALABILITY Re: Dkt. No. 15
HAYWOOD S. GILLIAM, JR. United States District Judge
a pro se prisoner, has filed this action for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254.
Respondent has moved to dismiss the petition on the grounds
that it is: (1) procedurally defaulted, and (2) untimely
under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2244(d).
Petitioner has filed an opposition, and respondent has filed
a reply. For the reasons given below, the motion will be
1994, petitioner was convicted by a San Mateo County jury of
second degree murder with personal use of a firearm. Petition
at 2. He was sentenced to 19 years to life in
state prison. Ex. A. The conviction was affirmed on appeal in
1995. Id. The California Court of Appeal's
online Register of Actions shows that petitioner did not seek
direct review in the California Supreme Court. The state
appellate court summarized the events of the crime as
On November 4, 1993, [petitioner] and Jose Manuel Gonzales
(also known by the nickname “Mafia”) got into an
argument over a business exchange transaction. At one point,
Mafia attacked [petitioner] and began beating his head
repeatedly against a door jamb. A neighbor broke up the
fracas after which both men traded angry threats and insults.
Mafia vowed to come back, “shoot up”
[petitioner]'s house and kill him, his wife and his
On the night before the shooting, Mafia telephoned
[petitioner] and told him he wanted to fix things between
them one way or the other. [Petitioner] told him not to come
over and that he did not want to talk with him.
The next morning Mafia rode up to [petitioner]'s house on
his motorcycle. [Petitioner], armed with a revolver in his
waistband, met him at the door. The two men stood facing each
other and spoke for a few minutes. Suddenly, [petitioner]
pulled out his gun and fired several shots. As Mafia fell
backwards and stumbled over his motorcycle, [petitioner] came
toward him and fired again at close range. He fired a final
shot into Mafia's head from about two to three feet away.
Of the four gunshot wounds sustained, only the head wound was
sufficient to cause death.
Dkt. No. 15 at 12-13.
August 19, 2014, petitioner filed a habeas petition in the
San Mateo County Superior Court, in which he claimed that the
prosecution violated its discovery obligations under
Brady v. Maryland, 373 U.S. 83 (1963), by allegedly
failing to disclose to defense counsel (1) arrest reports of
the victim in unrelated incidents involving sales of
narcotics and possession and concealment of firearms, and (2)
evidence that a second weapon was at the crime scene. Ex. B,
Petition at 9, 13, 16-17. As evidence of the former,
petitioner submits the allegedly suppressed police reports
concerning incidents involving the victim. Petition at 50-79.
As evidence of the latter, petitioner submits the San Mateo
County Sheriff's Office Crime Scene Report. Id.
at 91-94. The report does not specifically state that a
second weapon was found at the crime scene. Rather, it states
that a “spent nominal caliber 38, semi-jacketed
bullet” was found in the living room of the residence
of the yard where the incident took place. See Id.
Petitioner appears to argue that this was evidence of a
second weapon because he had been armed with a caliber .357
revolver. Petition at 16-17. Nothing in the record shows that
a second weapon was ever recovered from the crime scene, from
the victim, or elsewhere. Petitioner's opening brief on
appeal conceded that no gun was recovered from the victim.
Id. at 38.
argued that suppression of these materials was prejudicial to
his self-defense claim at trial insofar as they would have
helped show that he was defending himself against the victim,
who had a propensity for violence and purportedly had a
weapon. Ex. B, Petition at 15-18. Petitioner asserted that he
only learned of the allegedly suppressed evidence after
counsel was appointed to assist him in 2012 in state court
proceedings in relation to DNA evidence. Petition at 9; Dkt.
No. 1-1 at 6; Dkt. No. 26 at 1.
Superior Court denied the petition on February 11, 2015. Ex.
B. The court found that petitioner had not proffered any
evidence that the victim's arrest record had not been
provided to defense counsel, and found that the material had
“scant exculpatory value.” Id. The court
also held, citing In re Clark, 5 Cal.4th 750, 765
(1993) and In re Robbins, 18 Cal.4th 770 (1998),
that petitioner's claim that the police withheld reports
pointing to a second weapon being at the crime scene was
procedurally barred because the petition was unduly delayed.
March 23, 2015, petitioner filed a petition for writ of
habeas corpus in the California Court of Appeal. Ex. C. On
May 22, 2015, that court issued an Order stating:
[Petitioner] has filed a petition for writ of habeas corpus
alleging that evidence discovered in 2012 shows a key witness
perjured himself, and the prosecutor withheld exculpatory
evidence, at [petitioner]'s trial for the 1993 murder of
Jose Manuel Gonzales. The petition is procedurally barred
because it is untimely. In re Sanders (1999) 21
Cal.4th 697, 703-704. Further, the record petitioner presents
was not presented to the superior court (In re
Steele (2004) 32 Cal.4th 682, 692), and, in any event,
does not substantiate his claim for habeas relief (In re
Swain (1949) 34 Cal.2d 300). For all of these reasons,
the petition for writ of habeas corpus is denied, and the
request for the appointment of counsel is denied as moot.
September 30, 2015, petitioner filed another petition for
writ of habeas corpus in the court of appeal. Ex. D. That
court denied that petition without an opinion on February 29,
2016. Id. On April 20, 2016, the ...