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McDonald v. Ndoh

United States District Court, E.D. California

June 16, 2017

THOMAS CHRISTOPHER MCDONALD, Petitioner,
v.
ROSEMARY NDOH, Respondent.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Petitioner is a state prisoner proceeding pro se with this habeas corpus action filed pursuant to 28 U.S.C. § 2254, which challenges his 2003 convictions and sentence. Petitioner paid the filing fee.

         This action proceeds on the original petition filed July 7, 2016. See ECF No. 1. Petitioner challenges his convictions for second degree murder, leaving the scene of an accident, and false imprisonment, on three grounds which petitioner broadly characterizes as his actual innocence: (1) insufficient evidence; (2) ineffective assistance of trial and appellate counsel; and (3) newly discovered evidence.

         Pending before the court is respondent's motion to dismiss the petition on the ground that it was filed beyond the one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d). ECF No. 13. Petitioner filed an opposition, ECF No. 19, and respondent filed a reply, ECF No. 20. This matter is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons that follow, the undersigned recommends that respondent's motion to dismiss be granted.

         CHRONOLOGY

         The following dates are pertinent to the court's analysis:

• February 7, 2003: Following a trial by the court, petitioner was convicted in the Tehama County Superior Court of second degree murder (count one), leaving the scene of an accident (count two), and false imprisonment (count three). Petitioner was sentenced to an indeterminate state prison term of fifteen years-to-life on count one, a consecutive four-year term on count two, and an eight-month term on count three. Lodg. Doc. 1. Petitioner appealed.
• September 1, 2004: The California Court of Appeal, Third Appellate District, modified the judgment to stay execution of sentence on count three (false imprisonment). In all other respects, the judgment was affirmed. Lodg. Doc. 2. Petitioner did not seek review in the California Supreme Court.
• Petitioner later pursued one full round of petitions seeking collateral review in the state courts:
• May 17, 2015: Petitioner filed a habeas petition in the Tehama County Superior Court. Lodg. Doc. 3.
• June 5, 2015: The petition was denied as untimely in a written opinion, citing In re Robbins, 18 Cal.4th 770, 780 (1998), and finding no exceptions thereto. Lodg. Doc. 4.
• July 20, 2015: Petitioner filed a habeas petition in the California Court of Appeal, Third Appellate District. Lodg. Doc. 5.
• July 31, 2015: The petition was denied “as being repetitive” (successive) citing In re Clark, 5 Cal.4th 750, 782-83, 797-98 (1993). Lodg. Doc. 6.
• September 1, 2015: Petitioner filed a habeas petition in the California Supreme Court. Lodg. Doc. 7.
• December 9, 2015: The petition was summarily denied with citations to In re Robbins, 18 Cal.4th 770, 780 (1998), and People v. Duvall 9 Cal.4th 464, 474 (1995). (Lodg. Doc. 8).
• July 1, 2016: Petitioner filed his federal petition in this court.[1] ECF No. 1.

         MOTION TO DISMISS

         Respondent moves to dismiss the instant federal petition on the ground that it was untimely filed after expiration of the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A) (limitations period concludes one year after “the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review”). Respondent contends that petitioner is entitled to neither statutory nor equitable tolling. See ECF No. 13.

         Petitioner initially asserts that he is entitled to equitable tolling under 28 U.S.C. § 2244(d)(1)(A), “from 2004 to late February 2015.” This period allegedly encompasses petitioner's unsuccessful efforts to obtain his case file from his appellate counsel, and concludes when petitioner received a copy of the February 18, 2015 report prepared by his private investigator, Carl A. Bennett.[2] Mr. Bennett was hired by petitioner's family on January 5, 2015, when they had finally “earned enough funds.” ECF No. 1 at 17, 19-20.

         Petitioner argues in the alternative that calculation of the limitations period should be premised on 28 U.S.C. § 2244(d)(1)(D), pursuant to which the limitations period concludes one year after “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Petitioner contends that the new factual predicate triggering application of this statute occurred in “late February 2015 [], when he received the new evidence from the private investigator.” ECF No. 19 at 3-4.

         More broadly, petitioner contends that he is actually innocent, and that his petition is therefore exempt from the statute of limitations. See ECF Nos. 1, 19. Respondent has addressed each of petitioner's contentions. See ECF Nos. 13, 19.

         STATUTE ...


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