United States District Court, C.D. California
Willie A. Mills
Present: The Honorable Steve Kim, U.S. Magistrate Judge
CIVIL MINUTES - GENERAL
(IN CHAMBERS) ORDER TO SHOW CAUSE
August 2019, Petitioner filed a petition under 28 U.S.C.
§ 2254 challenging his 2014 state conviction for
carjacking. (Pet., ECF 1 at 2). Petitioner had counsel and
pled nolo contendere to the crime. (Id.). In his
petition, he claims that newly discovered alibi evidence
proves he was innocent. (Id. at 5). He also claims
ineffective assistance of counsel for his attorney's
unspecified failure to investigate before he entered his
plea. (Id.). And he claims that his conviction is
invalid because the carjacking statute, Cal. Penal Code
§ 215(a), is unconstitutionally vague under Johnson
v. United States, 135 S.Ct. 2551 (2015). (Id.
at 6). It “plainly appears, ” however, that
Petitioner “is not entitled to relief in the district
court.” Rule 4 of Rules Governing Section 2254 Cases;
see L.R. 72-3.2.
outset, the petition is not fully exhausted because, as
Petitioner concedes, he never raised his Johnson
claim in the state appellate courts. (Pet. at 6). To satisfy
the exhaustion requirement, Petitioner must exhaust available
state court remedies up to the state's highest court for
each claim in his federal petition. See 28 U.S.C.
§ 2254(b)(1)(A); Duncan v. Henry, 513 U.S. 364,
365 (1995) (per curiam); Baldwin v. Reese, 541 U.S.
27, 29 (2004). Otherwise, his petition is mixed and must be
dismissed. See Rose v. Lundy, 455 U.S. 509, 518-19
(1982). To avoid dismissal of his mixed petition (absent a
stay under Rhines v. Weber, 544 U.S. 269 (2005),
which he has not requested), Petitioner would ordinarily have
to amend his petition by removing the unexhausted
Johnson claim. See Butler v. Long, 752 F.3d
1177, 1180 (9th Cir. 2014). But amendment of the petition for
this purpose would be futile because Petitioner's
remaining claims offer no basis for habeas relief anyway.
newly discovered evidence is not cognizable as a freestanding
claim for habeas relief. See McQuiggin v. Perkins,
569 U.S. 383, 384 (2013); Townsend v. Sain, 372 U.S.
293, 317 (1963). Petitioner must show that “an
independent constitutional violation occur[ed] in the
underlying state criminal proceeding.” Herrera v.
Collins, 506 U.S. 390, 400 (1993). In other words,
“a claim of ‘actual innocence' is not itself
a constitutional claim, but instead a gateway through which a
habeas petitioner must pass to have his otherwise barred
constitutional claim[s] considered on the merits.”
Id. at 404. So while Petitioner's assertion of
newly discovered evidence could be relevant to the timeliness
of his cognizable claims (which is discussed below), it
cannot stand alone as an independent basis for federal habeas
Petitioner's ineffective assistance of counsel claim is
legally barred by Tollett v. Henderson, 411 U.S. 258
(1973). Under Tollett, a “a guilty plea
represents a break in the chain of events which has preceded
it in the criminal process” so that a defendant
“may not thereafter raise independent claims relating
to the deprivation of constitutional rights that occurred
prior to” the plea. Id. at 266-67.
Tollett applies equally to pleas of nolo contendere.
See Ortberg v. Moody, 961 F.2d 135, 137-38 (9th Cir.
1992). And there are only narrow exceptions to the
Tollett bar, none of which appears to apply here.
See United States v. Broce, 488 U.S. 563, 569
(1989); Lefkowtiz v. Newsome, 420 U.S. 283, 288
(1975). So Petitioner's only exhausted claim-that his
counsel was ineffective for failing to conduct an unspecified
pre-plea investigation-is foreclosed by Tollett as a
basis for relief. See, e.g., Estrada v.
Tampkins, 2019 WL 4145063, at *4 (C.D. Cal. July 19,
ineffective-assistance-of-counsel claims are barred by
Tollett because the Petition does not assert that
his counsel's conduct rendered his plea involuntary or
unintelligent.”); Barclay v. Chappell, 2014 WL
931867, at *8 (E.D. Cal. Mar. 10, 2014) (“[A] claim of
actual innocence is a direct contradiction to a guilty plea
and is therefore barred by Tollett.”).
that said, even if Petitioner could exhaust his
Johnson claim in state court and then amend his
federal petition to reallege both that claim and his
ineffective assistance claim, he would still get no habeas
relief for a separate reason: the claims are untimely.
Timeliness is determined “on a claim-by-claim
basis.” Mardesich v. Cate, 668 F.3d 1164, 1173
(9th Cir. 2012). So take Petitioner's ineffective
assistance claim first. Since he was sentenced in March 2014
but never appealed his conviction on direct appeal, his
conviction became final 60 days later in May
2014. See Cal. R. Ct. 8.308(a);
Collett v. Salazar, 588 F.Supp.2d 1107, 1109 (C.D.
Cal. 2008). From that date, Petitioner had one year until May
2015 to file a timely claim. See 28 U.S.C. §
2244(d)(1)(A). No. statutory tolling appears available,
see id. § 2244(d)(2), because Petitioner did
not file his first state habeas petition until 2019.
(See Cal.Ct.App. No. B295663). A state habeas
petition filed after the expiration of the statute of
limitations does not restart a new one-year limitations
period. See Ferguson v. Palmateer, 321 F.3d 820, 823
(9th Cir. 2003). Nor does there appear any basis for
equitable tolling of Petitioner's ineffective assistance
claim. See Stancle v. Clay, 692 F.3d 948, 953 (9th
Cir. 2012) (petitioner's burden to prove timeliness,
including statutory or equitable grounds for tolling).
Johnson claim is not timely, either. A § 2254
petition based on a newly established federal right may be
timely if filed within one year from “the date on which
the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by
the Supreme Court and made retroactively applicable to cases
on collateral review.” 28 U.S.C. § 2244(d)(1)(C).
But even if Johnson had announced a new rule
retroactively applicable to Petitioner's conviction, his
claim would still be untimely (even if
exhausted). The Supreme Court decided Johnson
in June 2015 and made it retroactively applicable in April
2016. See Welch v. United States, 136 S.Ct. 1257
(2016). The start of the deferred limitations period under
§ 2244(d)(1)(C) runs not from the date that a Supreme
Court decision is made retroactively applicable, but from
when the decision itself comes out. See Dodd v. United
States, 545 U.S. 353, 357-59 (2005). So any claim based
on Johnson had to be raised by no later than June
2016 to be timely. Yet Petitioner filed his petition here
more than three years later in August 2019, making it
untimely even if April 2016 were used- incorrectly-as the
start of the one-year clock under § 2244(d)(1)(C). For
this reason, even if Petitioner had requested a
Rhines stay in order to exhaust his Johnson
claim, it would be denied as futile. See Morrison v.
Macomber, 2017 WL 4534825, at *5 (C.D. Cal. Mar. 28,
2017) (Rhines stay is futile if claims in petition
sought to be stayed are already untimely).
either of Petitioner's claims timely under §
2244(d)(1)(D), another provision that like §
2244(d)(1)(C) can sometimes defer the start of a limitations
period. Under this provision, the one-year clock starts to
run from when the “factual predicate of the claim . . .
could have been discovered through the exercise of due
diligence.” 28 U.S.C. § 2244(d)(1)(D). But
critically, “[i]t is the Petitioner's knowledge of
the facts underlying his claim, not the evidentiary support
of his claim, that starts the running of the statute of
limitations” under § 2244(d)(1)(D). Lyman v.
Scribner, 2008 WL 4857603, at *2 (N.D. Cal. Nov. 10,
2008) (citing Flanagan v. Johnson, 154 F.3d 196, 199
(5th Cir. 1998)). Here, Petitioner should have known the fact
underlying the alibi affidavit attached to his petition- that
he was not at the scene of the crime when it happened-by no
later than February 22, 2013, the day of the crime. (Pet. at
11). So it does not matter that Petitioner claims he
discovered the new alibi witness only recently. See
Meadows v. Biter, 980 F.Supp.2d 1148, 1152 (C.D. Cal.
2013) (although declarant's “written statement may
be new, the factual predicate underlying the claim, i.e.,
that [petitioner did not] accompany[y] [co-defendant] on the
burglaries, is not new”); Clark v. Knipp, 2013
WL 1907726, at *6 (E.D. Cal. May 7, 2013) (“factual
predicate of petitioner's claim-that he is actually
innocent of the  robbery-would have been known to
petitioner . . . at the time he entered into the plea deal,
” not when he discovered someone else was later
convicted of robbery). And Petitioner never explains why,
“through due diligence, he could not have discovered
the facts contained in [the affidavit] sooner.”
Lyman, 2008 WL 4857603, at *2. Because the evidence
in the affidavit “was readily discoverable prior
to” his plea, Gandarela v. Johnson, 286 F.3d
1080, 1087 (9th Cir. 2002), Petitioner is not entitled to a
deferred accrual date of the statute of limitations under
Petitioner cannot rely on this alibi affidavit to argue
successfully that he is exempt from the statute of
limitations altogether because he is actually innocent of the
crime to which he pled nolo contendere. “[A]ctual
innocence, if proved, serves as a gateway through which a
petitioner may pass” to obtain consideration of
procedurally barred claims, like ones filed after the
“expiration of the statute of limitations.”
McQuiggin, 569 U.S. at 386. Yet this showing of
actual innocence “does not merely require a showing
that a reasonable doubt exists in the light of new evidence,
” Schlup v. Delo, 513 U.S. 298, 329 (1995),
but that “new, reliable evidence . . . demonstrat[es]
that it is more likely than not that no reasonable juror
would have found him guilty.” Meadows, 980
F.Supp.2d at 1153 (citing Schlup, 513 U.S. at 324,
327-28). The single, handwritten alibi affidavit
here-secured six years after the crime and bereft of salient
details-from a person with unknown bona fides does not meet
that minimum reliability standard. See, e.g.,
Herrera, 506 U.S. at 423 (affidavits made years
after trial- purporting to exculpate a convicted prisoner by
offering a new version of events-are “not
uncommon” and “are to be treated with a fair
degree of skepticism” because they are “obtained
without the benefit of cross-examination”);
McQuiggin, 569 U.S. at 401 (untimeliness of new
evidence “proffered to show actual innocence”
“bear[s] on [its] credibility”). So no matter if
the claims in the petition are exhausted and cognizable, they
cannot escape the federal habeas statute of limitations based
on Petitioner's belated and suspect claim of actual
these reasons, Petitioner is ORDERED TO SHOW CAUSE
on or before October 9, 2019, why
the Court should not summarily dismiss the Petition without
leave to amend since it is a mixed petition with an
unexhausted claim that, even if later exhausted, could
provide no federal habeas relief on the merits and would be
untimely in any event.
Petitioner no longer wishes to pursue this action given the
deficiencies in the Petition, he may voluntarily dismiss it
without prejudice using the attached Form CV-009.
See Fed. R. Civ. P. 41(a). But if Petitioner
files no notice of voluntary dismissal or a timely response
to this Order, the Court will recommend involuntary dismissal
of the action for failure to prosecute. See
Fed. R. Civ. P 41(b); L.R. 41-1.