Petition for Writ of Certiorari — David J. Godine, III, Petitioner v. Warren L. Montgomery, Warden

Supreme Court briefOct 13, 2020

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APPENDIX

INDEX TO APPENDIX

U.S. Court of Appeals for the Ninth Circuit

Order Denying Motion for Reconsideration

(May 15, 2020) .................................................................................. 1a

U.S. Court of Appeals for the Ninth Circuit

Order Denying Certificate of Appealability

(April 17, 2020) ................................................................................. 2a

United States District Court

Judgment

(March 11, 2019) ............................................................................... 3a

United States District Court

Order Accepting Findings and Recommendations of

United States Magistrate Judge

(March 11, 2019) ............................................................................... 4a

United States District Court

Order Denying Certificate of Appealability

(March 11, 2019) ............................................................................... 6a

United States District Court

Report & Recommendation of the United States

Magistrate Judge

(January 7, 2019).............................................................................. 8a

United States District Court

Proposed First Amended Petition for Writ of Habeas Corpus (excerpts)

(August 28, 2018) ........................................................................... 53a

United States District Court

Selected Exhibits to Proposed First Amended Petition for Writ of

Habeas Corpus

(August 28, 2018) ........................................................................... 76a

Case: 19-55366, 05/15/2020, ID: 11692960, DktEntry: 7, Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

MAY 15 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

DAVID J. GODINE III,

No. 19-55366

Petitioner-Appellant,

D.C. No. 2:16-cv-02534-ODW-KS

Central District of California,

Los Angeles

WARREN L. MONTGOMERY, Warden,

ORDER

Respondent-Appellee.

Before:

CANBY and CALLAHAN, Circuit Judges.

Appellant’s motion for reconsideration (Docket Entry No. 6) is denied. See

9th Cir. R. 27-10.

No further filings will be entertained in this closed case.

Case: 19-55366, 04/17/2020, ID: 11664351, DktEntry: 5, Page 1 of 1

FILED

UNITED STATES COURT OF APPEALS

APR 17 2020

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

DAVID J. GODINE III,

No. 19-55366

Petitioner-Appellant,

D.C. No. 2:16-cv-02534-ODW-KS

Central District of California,

Los Angeles

WARREN L. MONTGOMERY, Warden,

ORDER

Respondent-Appellee.

Before:

OWENS and BENNETT, Circuit Judges.

The request for a certificate of appealability (Docket Entry No. 4) is denied

because appellant has not shown that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28

U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012).

DENIED.

Case 2:16-cv-02534-ODW-KS Document 61 Filed 03/11/19 Page 1 of 1 Page ID #:3684

JS-6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

) NO. CV 16-2534-ODW (KS)

)

Petitioner,

)

) JUDGMENT

)

WARREN MONTGOMERY,

)

Respondent.

)

_________________________________ )

DAVID J. GODINE,

Pursuant to the Court’s Order Accepting Findings and Recommendations of United

States Magistrate Judge,

IT IS ADJUDGED that this action is dismissed with prejudice.

DATED: March 11, 2019

________________________________

OTIS D. WRIGHT, II

UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

) NO. CV 16-2534-ODW (KS)

)

Petitioner,

)

) ORDER DENYING CERTIFICATE OF

) APPEALABILITY

)

WARREN MONTGOMERY,

)

Respondent.

)

_________________________________ )

DAVID J. GODINE,

By separate Order and Judgment filed concurrently, the Court has determined that

habeas relief should be denied and this 28 U.S.C. § 2254 action should be dismissed with

prejudice. Under 28 U.S.C. § 2253(c)(1)(A), an appeal may not be taken from a “final order in

a habeas corpus proceeding in which the detention complained of arises out of process issued

by a state court” unless the appellant first obtains a certificate of appealability (“COA”). The

Court addresses the COA question pursuant to Rule 11(a) of the Rules Governing Section 2254

Cases in the United States District Courts.

“Where a plain procedural bar is present and the district court is correct to invoke it to

dispose of the case, a reasonable jurist could not conclude either that the district court erred in

Case 2:16-cv-02534-ODW-KS Document 62 Filed 03/11/19 Page 2 of 2 Page ID #:3686

dismissing the petition or that the petitioner should be allowed to proceed further. In such a

circumstance, no appeal would be warranted.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

After carefully considering the record, the Court has accepted the Magistrate Judge’s

findings and conclusions in a concurrently-filed Order. The Court has further concluded that:

reasonable jurists would not find it debatable that the petition is untimely and should be

dismissed with prejudice.

Accordingly, issuance of a certificate of appealability is not warranted.

IT IS SO ORDERED.

DATED: March 11, 2019

________________________________

OTIS D. WRIGHT, II

UNITED STATES DISTRICT JUDGE

Case 2:16-cv-02534-ODW-KS Document 55 Filed 01/07/19 Page 1 of 45 Page ID #:3601

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

) NO. CV 16-2534-ODW (KS)

)

Petitioner,

)

) REPORT AND RECOMMNEDATION OF

) UNITED STATES MAGISTRATE JUDGE

)

WARREN MONTGOMERY,

)

Respondent.

)

_________________________________ )

DAVID J. GODINE,

This Report and Recommendation is submitted to the Honorable Otis D. Wright, II,

United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order

No. 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

On April 7, 2016, Petitioner, a California state prisoner, constructively filed a Petition

For Writ Of Habeas Corpus By A Person In State Custody (the “Petition”) pursuant to 28

U.S.C. § 2254. (Dkt. No. 1.) On July 12, 2016, Respondent filed a Motion to Dismiss

(“MTD”) the Petition as untimely pursuant to 28 U.S.C. § 2244(d). (Dkt. No. 17.) On August

15, 2016, Petitioner filed an Opposition to the MTD. (Dkt. No. 20.)

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On August 22, 2017, the previously-assigned Magistrate Judge appointed counsel for

Petitioner and directed Respondent to file an Answer addressing the merits of Petitioner’s

claims. (Dkt. No. 22.) On December 4, 2017, Respondent filed an Answer. (Dkt. No. 31.)

On February 2, 2018, this case was assigned to the calendar of the undersigned Magistrate

Judge. (Dkt. No. 35.)

On August 28, 2018, Petitioner filed a Motion to Amend the Petition with a proposed

First Amended Petition, as well as a request for stay pursuant to Rhines v. Weber, 544 U.S.

269 (2005). (Dkt. No. 46.) On October 26, 2018, Respondent filed an Opposition to the

Motion to Amend and request for a Rhines stay. (Dkt. No. 52.) On November 16, 2018,

Respondent filed a Reply to the Opposition. (Dkt. No. 54.)

The matter is now under submission to the Court for decision. For the reasons discussed

below, the Court recommends that Petitioner’s Motion to Amend and request for a Rhines stay

be denied because the original Petition was not timely filed within the one-year limitation

period of 28 U.S.C. § 2244(d). The Court also recommends that the original Petition be

dismissed with prejudice as untimely.

PRIOR PROCEEDINGS

On July 17, 2009, a Los Angeles County Superior Court jury convicted Petitioner of

kidnapping during the commission of a carjacking (California Penal Code (“Penal Code”)

§ 209.5). (2 Clerk’s Transcript (“CT”) 351; 6 Reporter’s Transcript (“RT”) 2113.) Petitioner’s

co-defendants, Michael Trejo and Christine Ramos, were each convicted of the same crime.

(2 CT 350, 352; 6 RT 2112-14.) On January 5, 2011, the trial court sentenced Petitioner to

state prison for life with the possibility of parole. (3 CT 592, 596; 6 RT 3613.)

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Petitioner and his co-defendants appealed their judgments of conviction. (Lodgment

Nos. 4-6.) In an unpublished decision filed on July 12, 2012, the California Court of Appeal

affirmed the judgment as to each defendant. (Lodgment No. 11.) On October 10, 2012, the

California Supreme Court summarily denied their Petitions for Review. (Lodgment Nos. 12-

15.)

Earlier, on March 22, 2012, Petitioner had constructively filed a habeas petition in the

Los Angeles County Superior Court. (Lodgment No. 17.) On April 27, 2012, the Superior

Court denied the habeas petition in a briefly-reasoned decision. (Lodgment No. 16 at 33 and

No. 18.)

On July 16, 2013, Petitioner constructively filed another habeas petition in the Los

Angeles County Superior Court. (Lodgment No. 19.) On July 26, 2013, the Superior Court

denied the habeas petition in a briefly-reasoned decision. (Lodgment No. 20.)

Almost two years later, on June 7, 2015, Petitioner constructively filed another habeas

petition in the Los Angeles County Superior Court. (Lodgment No. 21.) On June 18, 2015,

the Superior Court denied the habeas petition in a briefly-reasoned decision. (Lodgment No.

22.)

On June 22, 2015, Petitioner filed a habeas petition in the California Supreme Court.

(Lodgment No. 23.) On July 28, 2015, the California Supreme Court withdrew the habeas

petition at Petitioner’s request. (Id.)

On July 24, 2015, Petitioner constructively filed a habeas petition in the California Court

of Appeal. (Lodgment No. 24.) On September 10, 2015, the California Court of Appeal

denied the habeas petition in a briefly-reasoned decision. (Lodgment No. 25.)

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On October 14, 2015, Petitioner constructively filed a habeas petition in the California

Supreme Court. (Lodgment No. 26.) On February 17, 2016, the California Supreme Court

denied the habeas petition without comment or citation of authority. (Lodgment No. 27.)

On April 7, 2016, Petitioner constructively filed this Petition. He raises the following

claims:

Petitioner is actually innocent, based on newly-discovered evidence

proving that Petitioner left the crime scene before the kidnapping occurred

and that another person was the perpetrator. (Petition at 6-8.)

The evidence presented at trial was insufficient to support Petitioner’s

conviction. (Petition at 6, 15-23.)

Trial counsel was ineffective during discovery, pre-trial proceedings, and

trial. (Petition at 6, 10, 26-27, 34-36, 38, 44, 46.)

The prosecutor committed misconduct during pre-trial proceedings and

trial. (Petition at 6, 20-21, 50.)

Appellate counsel was ineffective by failing to raise meritorious issues on

appeal. (Petition at 6, 25, 50.)

DISCUSSION

A federal habeas court may avoid complex issues regarding the statute of limitations if

it would be more efficient to resolve a habeas petitioner’s claims on the merits. See Van

Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001) (“[W]e do not need to reach the

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complex questions lurking in the time bar of the AEDPA. The trial court decided the case on

the merits, and on the merits it was right as a matter of law.”); Ramos-Martinez v. United

States, 638 F.3d 315, 325 (1st Cir. 2011) (“The district court did not dwell on the dearth of

information about equitable tolling but, rather, elected to sidestep that issue and resolve the

case on the merits. This pragmatic approach can be utilitarian in some cases; a court

occasionally may avoid addressing an enigmatic threshold issue by cutting directly to the

merits.”); Pough v. United States, 442 F.3d 959, 965 (6th Cir. 2006) (explaining that the issue

of timeliness of a section 2255 motion may be bypassed and the claims decided against the

petitioner on the merits). Because of the complexity of the statute of limitations as a threshold

issue in this case, the previously-assigned Magistrate Judge ordered the parties to brief the

merits of Petitioner’s claims, as Petitioner had raised them in the original Petition, with the

intention of filing a single Report and Recommendation discussing both the statute of

limitations issue and the merits of the original Petition. (Dkt. No. 22.) The previously-

assigned Magistrate Judge also deferred judgment on the statute of limitations issue and

specifically ordered Petitioner’s counsel to address that issue. (Id.) Thereafter, this case was

reassigned to the calendar of the undersigned Magistrate Judge. (Dkt. No. 35.)

After the reassignment, however, Petitioner’s counsel did not file a brief

comprehensively addressing the statute of limitations issue but instead concluded that

Petitioner should “amend his petition and raise new claims.” (Dkt. No. 46 at 2.) Petitioner

therefore filed a Motion to Amend the Petition pursuant to Fed. R. Civ. P. 15(a)(2), which was

accompanied by a proposed First Amended Petition and a motion for a Rhines stay in order to

exhaust any of the proposed new claims that are not already exhausted. (Dkt. No. 46.)

Petitioner’s proposed new claims, although not clearly identified as such, appear to include

new claims of ineffective assistance of counsel and prosecutorial misconduct. (Dkt. No. 46-

2.) Petitioner’s counsel did not address at length whether amendment of the Petition and a

Rhines stay would be appropriate in light of the statute of limitations issue, which remains

pending before the Court. Rather, Petitioner’s counsel briefly argued that the statute of

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limitations should not bar habeas relief because it was clear that Petitioner is actually innocent

of the kidnapping. (Dkt. No. 46-2 at 27-29.) Respondent, on the other hand, has raised the

statute of limitations issue at length and opposes Petitioner’s motions on that basis. (Dkt. Nos.

17, 31, 52.)

As Respondent points out, Petitioner’s best avenue for avoiding dismissal of his action

for untimeliness would be if his proposed amended habeas petition, which on its face is

untimely, related back to the date of a timely filed petition. Pursuant to Fed. R. Civ. P.

15(c)(1)(B), an amended complaint relates back to the date of the original complaint for

purposes of tolling the statute of limitations where the claim asserted in the amended pleading

arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the

original pleading. However, in order for Petitioner to benefit from this “relation back”

doctrine, his original Petition must have been timely filed in the first instance. See ASARCO,

LLC v. Union Pacific R. Co., 765 F.3d 999, 1007 (9th Cir. 2014) (“Of course, relation back

does not help Asarco if the original complaint was not timely in the first instance.”);

Henderson v. Bolanda, 253 F.3d 928, 931 (7th Cir. 2011) (holding that relation back requires

that the original complaint be timely filed); see also Krupski v. Costa Crociere S. p. A., 560

U.S. 538, 541 (2010) (“Rule 15(c) of the Federal Rules of Civil Procedure governs when an

amended pleading ‘relates back’ to the date of a timely filed original pleading and is thus itself

timely even though it was filed outside an applicable statute of limitations.”) (emphasis

added).

Likewise, Petitioner’s request for a Rhines stay, filed as part of his motion to amend,

also requires that the original Petition was timely filed in the first instance. See Dang v. Sisto,

391 F. App’x 634, 635 n.9 (9th Cir. 2010) (concluding that because a petitioner’s habeas

petition was untimely, a Rhines stay “would have availed him of nothing”); Doe v. Jones, 762

F.3d 1174, 1183 n.12 (10th Cir. 2014) (claims that “are already untimely under AEDPA” do

not implicate Rhines); Parmley v. Norris, 586 F.3d 1066, 1073 (8th Cir. 2009) (“Because the

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stay-and-abeyance procedure for mixed habeas petitions is limited to timely petitions, . . . our

conclusion that Parmley’s petition was untimely renders the stay-and-abeyance issue moot.”)

(emphasis in original).

In sum, if the original Petition is untimely in the first instance, it would serve no purpose

for the Court to allow Petitioner to pursue new federal claims by granting his motions to amend

and for a Rhines stay. See Hinton v. Pacific Enterprises, 5 F.3d 391, 396-97 (9th Cir. 1993)

(holding that a district court may refuse to allow amendment of an original complaint that was

subject to dismissal as untimely, and where the proposed amendment would not cure the

statute of limitations defect); Bradley v. Val-Mejias, 379 F.3d 892, 900-01 (10th Cir. 2004)

(holding that it would be futile to permit amendment of an original complaint that was

untimely filed in the first instance). The Court therefore must determine the threshold issue

of whether the original Petition is subject to dismissal because of the statute of limitations.

Petitioner’s counsel states that it not even necessary to rely on relation back to the

original Petition, apparently because the statute of limitations should not be an issue in this

case in light of Petitioner’s actual innocence. (Dkt. No. 46-2 at 27-29; No. 54 at 2 n.2.) But

even if Petitioner were not relying on the relation back doctrine, by Petitioner’s own account,

it still would be necessary to address whether he is entitled to an equitable exception to the

statute of limitations based on actual innocence. Thus, the Court’s analysis of the threshold

issue of the statute of limitations is set out below.

Legal Standard

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a

one-year statute of limitations for state prisoners to file a federal habeas petition. 28 U.S.C.

§ 2244(d)(1). The “statutory purpose” of the one-year limitations period is to “encourage[e]

prompt filings in federal court in order to protect the federal system from being forced to hear

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stale claims.” Carey v. Saffold, 536 U.S. 214, 226 (2002). The one-year limitation period is

applied on a claim-by-claim basis. Mardesich v. Cate, 668 F.3d 1164, 1169 (9th Cir. 2012).

The one-year limitations period set forth in 28 U.S.C. § 2244(d)(1) is subject to a

statutory tolling provision, which suspends it for the time during which a “properly-filed”

application for post-conviction or other collateral review is “pending” in state court. 28 U.S.C.

§ 2244(d)(2); Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001). Additionally, in

certain “extraordinary circumstances” beyond a prisoner’s control, equitable tolling may be

available to toll the one-year limitations period. See Holland v. Florida, 560 U.S. 631, 645,

649 (2010). Finally, a prisoner who makes a convincing showing of actual innocence is

entitled to an equitable exception to the one-year limitations period. See McQuiggin v.

Perkins, 569 U.S. 383, 386 (2013).

II.

Analysis

Commencement Date

The Section 2244(d)(1) limitations period is triggered and begins to run from the latest

of:

(A) the date on which the underlying judgment became final through either the

conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which any impediment to the filing of a federal petition created

by unconstitutional state action is removed;

constitutional right was first recognized by the United States Supreme Court; or

(D) the date on which the factual predicate underlying a claim could have been

discovered through the exercise of due diligence.

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28 U.S.C. § 2244(d)(1)(A)-(D).

The commencement dates for Petitioner’s claims is governed by section 2244(d)(1)(A).

The one-year limitations period began to run when Petitioner’s conviction became final on

January 8, 2013, or 90 days after the California Supreme Court denied the Petition for Review

on October 10, 2012 (Lodgment No. 15) and when the deadline to petition the United States

Supreme Court for a writ of certiorari expired. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th

Cir. 1999). Petitioner is not entitled to a later commencement date for any of his claims

because of a state-created impediment, a newly-recognized constitutional right, or delayed

discovery of the factual predicate underlying a claim. See 28 U.S.C. § 2244(d)(1)(B)-(D).

In particular, Petitioner is not entitled to a later commencement date pursuant to

§ 2244(d)(1)(D) due to delayed discovery of a factual predicate. Although Petitioner has

attached to his Petition “newly-discovered” evidence as support for many of his claims —

some of which post-dates his conviction finality date of January 8, 2013 — this new evidence

does not trigger a later date under § 2244(d)(1)(D). The new evidence, discussed in more

detail below, consists mostly of eyewitness statements generated over period from 2010 to

2015. But a starting date under § 2244(d)(1)(D) is triggered when Petitioner knew the “vital

facts” underlying his claims, see Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012), not

when he finishes collecting all the supporting evidence for those claims. The crux of the new

evidence is that Petitioner did not commit the kidnapping: he was intoxicated on the night of

the kidnapping, he left the crime scene hours before the kidnapping happened, and another

person actually committed the kidnapping. Evidence in support of these theories was available

to Petitioner long before his conviction became final on January 8, 2013. (Petition, Exhibits

B, C, G, H, I.) Moreover, Petitioner knew the vital facts from this evidence — that he was

intoxicated, left the crime scene before the kidnapping happened, and was misidentified as one

of the kidnappers — long before his conviction became final on January 8, 2013. Indeed,

evidence of misidentification and third-party culpability was the basis of Petitioner’s primary

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defense at trial in July 2009 (6 RT 1574-95), and evidence of Petitioner’s intoxication was the

basis of his motion for new trial in January 2011 (3 CT 519-28; 6 RT 3601-08).

Thus, because Petitioner knew the vital facts underlying his claims before his conviction

became final on January 8, 2013, that date is the commencement date for all of his claims. See

28 U.S.C. § 2244(d)(1)(A). It makes no difference that some of the supporting evidence for

his claims, particularly a few of the witness affidavits, was generated as late as 2015. See

Rivas v. Fischer, 687 F.3d 514, 535 (2d Cir. 2012) (“[I]f new information is discovered that

merely supports or strengthens a claim that could have been properly stated without the

discovery, that information is not a ‘factual predicate’ for purposes of triggering the statute of

limitations under § 2244(d)(1)(D).”); Earl v. Fabian, 556 F.3d 717, 725-26 (8th Cir. 2009)

(recognizing that “[s]ection 2244(d)(1)(D) does not convey a statutory right to an extended

delay . . . while a habeas petitioner gathers every possible scrap of evidence that might . . .

support his claim”) (alterations in original) (quoting Flanagan v. Johnson, 154 F.3d 196, 199

(5th Cir. 1998)); McAleese v. Brennan, 483 F.3d 206, 214 (3d Cir. 2007) (“Clearly, [petitioner]

has confused the facts that make up his claims with evidence that might support his claims.”)

(citing Johnson v. McBride, 381 F.3d 587, 589 (7th Cir. 2004) (“A desire to see more

information in the hope that something will turn up differs from ‘the factual predicate of [a]

claim or claims’ for purposes of § 2244(d)(1)(D).”)).

In sum, the one-year limitations period commenced on January 8, 2013, and absent any

tolling, it expired one year later on January 8, 2014. Because Petitioner constructively filed

his original Petition on April 7, 2016, it is untimely by more than two years, unless Petitioner

demonstrates that he is entitled to, either singularly or in combination, a sufficient period of

statutory tolling, a sufficient period of equitable tolling, or an equitable exception based on

actual innocence.

///

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Statutory Tolling

Title 28 U.S.C. § 2244(d)(2) provides:

The time during which a properly filed application for State post-conviction

or other collateral review with respect to the pertinent judgment or claim is

pending shall not be counted toward any period of limitation under this subsection.

Here, Petitioner’s first state habeas petition was constructively filed in the Los Angeles

County Superior Court on March 22, 2012 and rejected on April 27, 2012. (Lodgment No. 16

at 33; Nos. 17 and 18.) Statutory tolling does not apply to this habeas petition because it was

rejected before Petitioner’s limitations period commenced on January 8, 2013. See Waldrip

v. Hall, 548 F.3d 729, 735 (9th Cir. 2008) (a state habeas petition that is denied before the

limitations period begins to run has “no effect on the timeliness of the ultimate federal filing”).

Petitioner’s next habeas petition was constructively filed in the Los Angeles County

Superior Court on July 16, 2013 and denied on July 26, 2013. (Lodgment Nos. 19 and 20.)

Petitioner is entitled to statutory tolling for the ten days while this habeas petition was pending.

Thus, the expiration of the one-year limitations period was extended by ten days, from January

8, 2014 to January 18, 2014.

Each of Petitioner’s remaining state habeas petitions was constructively filed in June

2015 or later, after the limitations period already had expired on January 18, 2014. (Lodgment

Nos. 21, 23, 24, 26.) Thus, none of these state habeas petitions entitles Petitioner to any period

of statutory tolling. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding

that § 2244(d) “does not permit the reinitiation of the limitations period that has ended before

the state petition was filed,” even if the state petition was timely under state law); Jiminez v.

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Rice, 276 F.3d 478, 482 (9th Cir. 2001); Wixom v. Washington, 264 F.3d 894, 898-99 (9th Cir.

2001).

In sum, after applying a brief period of statutory tolling, the one-year limitations period

expired on January 18, 2014. Since Petitioner constructively filed his original Petition on

April 7, 2016, it is untimely by more than two years, unless Petitioner shows that he is entitled

to a sufficient period of equitable tolling or an equitable exception for actual innocence.

Equitable Tolling

The one-year limitations period established by Section 2244(d)(1) may also be equitably

tolled in appropriate circumstances. Holland, 560 U.S. at 645-49. However, application of

the equitable tolling doctrine is the exception rather than the norm. See, e.g., Waldron-Ramsey

v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (characterizing the Ninth Circuit’s

“application of the doctrine” as “sparing” and a “rarity”); Miles v. Prunty, 187 F.3d 1104, 1107

(9th Cir. 1999) (“equitable tolling is unavailable in most cases”). A petitioner seeking

application of the doctrine bears the burden of showing that it should apply to him. Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005). Specifically, a habeas petitioner may receive

equitable tolling only if he “shows ‘(1) that he has been pursuing his rights diligently, and (2)

that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland,

560 U.S. at 645.

Here, although Petitioner briefly mentions three possible grounds for equitable tolling,

none of them rises to the level of an extraordinary circumstance, either singularly or

collectively. First, Petitioner contends that he was barred from law library access for half of

the time he has been incarcerated due to his job assignment. (Petition at 8-9.) A restriction

on law library access and a job assignment are not sufficiently unusual to constitute

extraordinary circumstances for equitable tolling to apply. See Ramirez v. Yates, 571 F.3d

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993, 998 (9th Cir. 2009) (holding that petitioner was not entitled to equitable tolling for limited

access to the law library and copy machine because to conclude otherwise “would permit the

exception to swallow the rule” that equitable tolling be rarely granted); Chaffer v. Prosper,

592 F.3d 1046, 1049 (9th Cir. 2010) (per curiam) (a prison law library missing a handful of

reporter volumes was not an extraordinary circumstance); Miller v. Marr, 141 F.3d 976, 978

(10th Cir. 1998) (petitioner’s alleged lack of access to law library materials and resulting

unawareness of the limitation period until it was too late did not warrant equitable tolling);

Malo v. Tampkins, 2014 WL 2573313, at *5 (S.D. Cal. June 6, 2014) (“Yet, a prison work

assignment is also not an extraordinary circumstance that entitles a prison to equitable

tolling.”).

Second, Petitioner contends that he was subjected to a “number of lockdowns” and

“massive searches.” (Petition at 9.) These alleged circumstances also are not sufficiently

unusual to constitute extraordinary circumstances warranting equitable tolling. See Norwood

v. Lockyer, 390 F. App’x 762, 763 (9th Cir. 2010) (finding that petitioner’s explanations of

limited law library access, being moved to different cells, and temporary lockdowns fail to

show “circumstances that are out of the ordinary for prison life or that would have made it

impossible to file on time”) (internal quotation marks omitted); Martinez v. Knowles, 359 F.

App’x 732, 733 (9th Cir. 2009) (finding absence of extraordinary circumstances based on “the

period during which [the petitioner] was in prison lockdown and prevented from accessing the

law library and necessary legal materials”); see also Wilder v. Runnels, 2003 WL 22434102,

at *3 (N.D. Cal. Oct. 22, 2003) (“[L]ockdowns, placement in administrative

segregation/solitary confinement, and other common restrictions on access to the law library

and legal assistant programs, generally do not qualify as ‘extraordinary circumstances.’”);

Atkins v. Harris, 1999 WL 13719, at *2 (N.D. Cal. Jan. 7, 1999) (“Petitioner’s allegations of

difficulty in gaining library access, prison lockdowns, his lack of legal training, poor eyesight,

and transfers to various prisons fail to meet the requisite extraordinary circumstances.”);

Giraldes v. Ramirez-Palmer, 1998 WL 775085, at *2 (N.D. Cal. Nov. 3, 1998) (holding that

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14-month lockdown did not constitute an extraordinary circumstance warranting equitable

tolling).

Third, Petitioner contends that he lacks legal experience and needed the assistance of a

certified paralegal. (Petition at 9.) These circumstances also fail to rise to the level of

extraordinary circumstances warranting equitable tolling. See, e.g., Rasberry v. Garcia, 448

F.3d 1150, 1154 (9th Cir. 2006) (holding that “a pro se petitioner’s lack of legal sophistication

is not, by itself, an extraordinary circumstance warranting equitable tolling” of the AEDPA

limitations period); Chaffer, 592 F.3d at 1049 (“[The] fact that an inmate law clerk was

assisting in drafting the state habeas petition does not relieve [him] from the personal

responsibility of complying with the law.”); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir.

1999) (ignorance of the limitation period did not warrant equitable tolling).

In sum, Petitioner’s allegations about his prison circumstances collectively do not raise

a colorable claim for equitable tolling. Thus, it remains the case that the one-year limitations

period expired on January 18, 2014. Since Petitioner constructively filed his original Petition

on April 7, 2016, it is untimely by more than two years, unless Petitioner demonstrates that he

is entitled to an equitable exception based on actual innocence.

Actual Innocence

A convincing showing of actual innocence will entitle a prisoner to an equitable

exception to the AEDPA statute of limitations. See McQuiggin, 569 U.S. at 386. A showing

of actual innocence “requires petitioner to support his allegations of constitutional error with

new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence — that was not presented at trial.” Schlup v. Delo, 513

U.S. 298, 324 (1995). The petitioner “must show that it is more likely than not that no

reasonable juror would have convicted him in light of the new evidence.” Id. at 327. This

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“does not merely require a showing that a reasonable doubt exists in light of the new evidence,

but rather that no reasonable juror would have found the defendant guilty.” Id. at 329.

The actual innocence exception is limited to “certain exceptional cases involving a

compelling claim of actual innocence.” See House v. Bell, 547 U.S. 518, 521 (2006); see also

Schlup, 513 U.S. at 324 (noting that “experience has taught us that a substantial claim that

constitutional error has caused the conviction of an innocent person is extremely rare”).

Because of “the rarity of such evidence, in virtually every case, the allegation of actual

innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir.

2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)). “At the same time, though,

the Schlup standard does not require absolute certainty about the petitioner’s guilt or

innocence.” House, 547 U.S. at 538.

In assessing the new evidence, the habeas court “may consider how the timing of the

[new evidence] and the likely credibility of the affiants bear on the probable reliability of that

evidence.” See Schlup, 513 U.S. at 869. The habeas court must then consider “all the

evidence, old and new, incriminating and exculpatory, admissible at trial or not,” and then

make a “probabilistic determination about what reasonable, properly instructed jurors would

do.” Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011) (en banc). The habeas court’s function

“is not to make an independent factual determination about what likely occurred, but rather to

assess the likely impact of the evidence on reasonable jurors.” House, 547 U.S. at 538.

Summary of the Evidence of Petitioner’s Guilt

“In order to assess whether [Petitioner] has satisfied the stringent requirements of

Schlup, we must first examine the underlying facts in some detail.” See Lee, 653 F.3d at 938.

Based on its independent review of the trial record, the Court finds that the following factual

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summary from the California Court of Appeal’s opinion on direct review is a fair and accurate

representation of the evidence presented against Petitioner (and his two codefendants) at trial.

[a.]

Prosecution evidence.

Rebecca Tafolla testified she first met defendant Trejo on August 30, 2008.

They smoked methamphetamine and spent the night together. The next morning

they drove around in her Honda Civic trying to obtain more methamphetamine.

In the afternoon they visited a house in Covina where Trejo introduced Tafolla to

the two sisters who lived there, Kelly and Monique.

Tafolla went home around 4:00 p.m. because she had to babysit, but she

returned to the Covina house shortly after midnight. In addition to Trejo, Kelly

and Monique, there were now a few other people at the house, including

[Petitioner] and defendant Ramos. After a while, Tafolla drove Ramos and Trejo

to a 7–Eleven store. They returned to the Covina house, but left again to visit a

friend of Trejo’s in La Puente. They stayed there only a few minutes and then

drove back to the Covina house. Someone wanted to smoke, but Kelly and

Monique said they had to do it outside, so Trejo, [Petitioner], Ramos and Tafolla

went to the backyard.

[Petitioner] picked up a metal baseball bat and began swinging it at Tafolla,

but he was just fooling around and she did not feel threatened. However, she did

flinch and Trejo put his arms around her. The next thing Tafolla remembered was

waking up inside the trunk of her own car. Her head hurt and she could taste

blood. She heard Ramos say something like, “[C]heck her to see if she has

anything in her pockets, check her.”

[Petitioner] and Trejo standing there. When Tafolla tried to get out of the trunk,

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Trejo pushed her back in. Tafolla was crying and Trejo told her to “shut the fuck

up or I’m going to shoot you.” He shut the trunk and Tafolla blacked out again.

When Tafolla regained consciousness, she felt the car going fast and she

heard Trejo and Ramos talking. Tafolla pushed against the trunk lid and it opened.

Even though she could tell they were driving on the freeway, Tafolla threw herself

out of the car and onto the roadway because she was afraid the defendants were

going to kill her. She did not recall hitting the ground, but she remembered getting

up, walking off the freeway and finding a 7–Eleven. She was crying and bleeding

all over. Someone called the police and Tafolla was taken to the hospital, where

she remained for a week. She had fractures to one ear, abrasions to her arms, and

her broken jaw had to be wired shut for a month. When Tafolla’s car was

recovered, it had been set on fire and burned.

Kelly testified she lived at her parents’ house in Covina. On the weekend

of this incident, she invited some friends over because her parents were out of

town.

[Petitioner] showed up later with Kelly’s brother Mark. Kelly testified Tafolla

was in and out of the Covina house several times. Tafolla and Trejo went to the

7–Eleven at one point. Around midnight, the defendants were at the house along

with Tafolla, Kelly, Monique and Mark. Several times, Kelly heard Trejo say “he

was going to kick [Tafolla’s] ass” and that “he was going to beat her and hold her

hostage for her car.” Kelly testified she was scared about “what [Trejo] was

planning,” so she told everybody they had to leave.

Trejo arrived in the late afternoon and introduced her to Tafolla.

“Q.

Okay. And when you say ‘what he was planning,’ what

did he — I don’t want you to guess at what he was planning — what

did he tell you he was going to do?

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“A.

Well, that he was going to beat her, hold her hostage,

take her car, and by the time her parents or . . . anybody reported her

missing or the car stolen, that it would already be burned up.”

Kelly walked Tafolla to her car because she thought Tafolla was leaving,

but 20 minutes later she noticed Tafolla’s car was still outside. Kelly looked into

the backyard, where she saw Trejo and [Petitioner]. She heard the side gate open

and Tafolla say, “[W]hy are you doing this to me?” Kelly then walked to the front

door and saw [Petitioner] and Trejo dragging Tafolla from the backyard toward

her car. Ramos was standing by the driver’s door of Tafolla’s car. Trejo told

Tafolla to shut up and he punched her. Kelly could see Tafolla had been badly

beaten; she was bleeding from her head and face. Trejo opened the trunk and

threw Tafolla inside. All three defendants then got into Tafolla’s car, with Ramos

driving.

Monique testified Tafolla went into the backyard with Trejo at some point

after midnight. Ramos was in the front yard and Mark was apparently asleep

somewhere in the house. Monique did not know where [Petitioner] was. The side

gate made a noise and Monique saw Trejo holding Tafolla from behind. They

were going toward the front of the house where Tafolla’s car was parked. Tafolla

was crying and Trejo told her to shut up. Monique went inside and locked the

door. She heard Tafolla’s car drive off. She did not see [Petitioner] or Ramos at

this time.

Monique was initially uncooperative with the police because she was afraid

of Trejo. Eventually she told them Trejo had gotten upset that night and told

everyone he was going to kick Tafolla’s ass. Monique could not recall if she also

told police Trejo had said he was going to hold Tafolla hostage for her car because

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he was tired of her. Monique denied telling detectives that, after the abduction,

she cleaned up some blood on the ground and covered it with paint.

Monique and Kelly denied being members of the West Covina Mob gang.

The jury was shown a photograph of the two sisters, along with Ramos and some

other girls, wearing red shirts and throwing up gang signs. Kelly explained the

shirts were in remembrance of Monique’s fiancé, Frank, a member of the West

Covina Mob who had been killed by Azusa 13 gang members three months before

Tafolla was abducted. Ramos and [Petitioner] were members of the West Covina

Mob. Trejo was a member of the El Monte Flores gang.

Monique told Detective Guillermo Guerrero that Trejo had been saying “he

was upset with [Tafolla] and that he was going to kick her ass and hold her hostage

for her car.” Subsequently, Trejo asked to have the dogs put away so he could

smoke in the backyard. After Monique put the dogs in the garage, [Petitioner] and

Ramos arrived. All three defendants and Tafolla went into the backyard. Within

minutes, Monique and Kelly heard a fight or a scuffle in the backyard. Because

it was dark, they could not see exactly what was going on. Then the side gate

opened. Monique looked out and saw [Petitioner] and Trejo dragging Tafolla

from the backyard toward her car, which was parked in front of the house.

Monique then saw Ramos drive off in Tafolla’s car.

A few weeks afterward, Monique informed Detective Guerrero that later on

the night of the abduction she received a phone call from [Petitioner], who said

Tafolla had been assaulted in order to protect Kelly and Monique from a planned

attack by Azusa 13 gang members. [Petitioner] also told Monique to wash

Tafolla’s bloodstains from the cement in the backyard where the beating occurred.

Monique tried to clean the area, but ended up covering it with paint.

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[b.]

Defense evidence.

Amber Demartinez was a student at Everest College who had some classes

with Kelly.

Demartinez’s sister is married to Trejo’s brother.

Kelly told

Demartinez that during a party at her house in August 2008, she had seen a

Hispanic woman and a Black man beating up Tafolla. They put Tafolla into the

trunk of a car and drove off. Then Kelly and Trejo got into another car and

followed them. On the 57 Freeway, Tafolla leapt from the car and Kelly had to

swerve to avoid hitting her. Kelly did not stop because she was afraid of getting

involved. Kelly said Trejo had not participated in Tafolla’s abduction.

Trejo testified in his own defense. He first met Tafolla at a friend’s house.

After getting high together, they slept in an abandoned apartment and then drove

around the next day looking for more methamphetamine. Later they went to Kelly

and Monique’s house in Covina. Trejo knew them because he had been friends

with Monique’s fiancé Frank, who had been killed by gang members a few months

earlier. Trejo and Tafolla went to the Covina house because they needed a place

where they could use drugs. When they first arrived the only people there were

Kelly, Monique and their brother Mark. Tafolla was feeling dirty from sleeping

in the abandoned apartment, so she decided to go home while Trejo stayed at the

Covina house.

In the early evening, “a crowd of people rolled up in a van . . . it was a bunch

of Bloods . . . guys, girls, Mexican, Black. It was all sorts.” These people had

been attending a gang social function held in Frank’s memory. Tafolla rejoined

Trejo at the Covina house. Later, they started to run out of drugs. Tafolla said

she could get more drugs from her “homeys,” but she would have to go alone.

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Trejo agreed and Tafolla left. Trejo started feeling tense because “some Black

dudes” asked Monique why Tafolla kept going in and out of the house.

When Tafolla returned, they went to the backyard so Trejo could smoke a

cigarette. There were other people there, including a big African-American guy

who had a large “M” tattooed on his neck.

[Petitioner]. This man made hostile remarks to Trejo and then grabbed a baseball

bat. Trejo told Tafolla he was worried and she suggested they leave. She asked

him to retrieve her things from the house. While Trejo was inside, he heard a loud

noise. When he returned to the yard, Tafolla was unconscious on the ground.

Trejo punched the guy standing next to him and a fight ensued. Kelly and

Monique came outside and yelled at Trejo to leave. Trejo went to help Tafolla,

who was crying and yelling. When he tried to walk Tafolla to the side gate, she

fell face first onto the ground. Her mouth started to bleed and she passed out.

This man was not defendant

Another fight started. Trejo saw a woman standing next to Tafolla’s car. He

asked her where Tafolla was and the woman said they had put her in the trunk.

Trejo opened the trunk and found Tafolla bleeding but conscious. He told her he

would take her home. However, other people got into Tafolla’s car and drove off.

Trejo jumped into Kelly’s car. They argued because Kelly didn’t want to follow

Tafolla’s car, but eventually she did. Trejo saw Tafolla fall out of the trunk onto

the freeway. Kelly swerved to avoid her. Trejo told Kelly to go back, but she

refused and ordered him out of her car. Trejo did not call the police about

Tafolla’s abduction because he feared retaliation from Bloods gang members.

Ramos testified she arrived at Kelly and Monique’s house about 11:30 p.m.

that night. Trejo was supposed to give Ramos a tattoo. Ramos went with Tafolla

and Trejo to the 7-Eleven to buy cigarettes. When they returned, Ramos went into

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the backyard by herself to smoke. While there, she did not see a fight, anyone

with a bat, or anything unusual. She left around midnight. Ramos did not recall

having seen [Petitioner] that night or telling the police that she had.

Two weeks later Ramos left California because she was having problems

with her mother; she went to stay with relatives in Texas. When her mother

informed her a detective was looking for her in connection with a kidnapping,

Ramos turned herself in.

Justin Corvetti, [Petitioner’s] former parole agent, testified he had taken

photographs of [Petitioner] in 2008. At that time there was no red “M” tattoo

visible on [Petitioner’s] neck, although Corvetti acknowledged such a tattoo could

have been hidden by [Petitioner’s] shirt collar.

[c.]

Rebuttal evidence.

Detective Guerrero testified both Ramos and Trejo told him [Petitioner] was

at the Covina house that night. According to Trejo, [Petitioner] did not trust

Tafolla and wanted her to leave the party. Trejo told him to relax because Tafolla

was okay. Later, Trejo, [Petitioner], Tafolla and several unknown African–

American males went to the backyard. [Petitioner] was swinging a bat. They all

stood in a semi-circle and [Petitioner] walked up to Tafolla and hit her in the head

with the bat. Ramos then came up and took Tafolla’s car keys. [Petitioner] and

another man carried Tafolla to her car and put her in the trunk. [Petitioner] got in

and Ramos drove off. Trejo got into Kelly’s car and they followed. Trejo saw

Tafolla jump onto the freeway, but he did not stop for her because he didn’t want

to get involved.

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(Lodgment No. 11 at 2-8.)

Summary of Petitioner’s New Evidence

A showing of actual innocence “requires petitioner to support his allegations of

constitutional error with new reliable evidence — whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not

presented at trial.” Schlup, 513 U.S. at 324. Petitioner’s new evidence, as detailed below,

consists of two investigative reports, photographs, and the statements of eleven eyewitnesses.

The crux of the new evidence is that the victim had doubts after the trial ended as to whether

Petitioner was one of the kidnappers; that Petitioner was drunk and left the party before the

kidnapping was committed; that a man named “T-Face Brim,” rather than Petitioner, actually

committed the kidnapping; and that Kelly used Petitioner’s phone to ask people for help and

to instruct her sister to clean up the victim’s bloodstains.

Report by Brown Investigations of Tafolla Interview

In November 2014, the victim, Tafolla, gave an interview to an investigator at Brown

Investigations. (Petition, Exhibit A.) Persons close to Petitioner had hired the agency to

interview her. (Id. at 1.)

Tafolla told the interviewer that she “was never 100% sure of [Petitioner] being the

person who attacked me, since I never saw the person, and I only briefly observed a male

Black after being placed in the trunk of my car, and during that time I was in and out of

consciousness.” (Id. at 2.) Tafolla also told the investigator that Kelly and Monique had told

Tafolla that “I sent the wrong person to jail.” (Id.)

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Tafolla, however, declined the investigator’s request to meet with him again so she could

memorialize her interview responses in a written and recorded statement. (Id. at 3.) She

explained to the investigator that the incident gave her bad memories and that she feared “her

life could be in danger if this incident was re-opened.” (Id.)

Report by Mendoza Investigation Service and Affidavit by

Dustin Fabre

In January 2011, Petitioner filed a motion for new trial that was supported by a report

by Mendoza Investigation Service and an affidavit by Dustin Fabre. (3 CT 519-28; 6 RT

3601-08; Petition, Exhibits B and C).

According to the Mendoza Investigation Service report, during a December 2010

interview, Fabre stated that he was present at the party, that he noticed Petitioner appeared to

be drunk, that Fabre took several photographs of Petitioner and others, that Fabre did not see

anything consistent with a kidnapping, and that Fabre left the party at about midnight. (3 CT

523.) According to his own December 2010 affidavit, Fabre similarly stated that Petitioner

appeared to be “so drunk that he did not know where he was.” (3 CT 525; Petition, Exhibit

C.) Attached to Fabre’s affidavit were photographs of people who looked like they were at a

party, including a male lying on the ground. (Petition, Exhibit C.) The trial court denied

Petitioner’s motion for new trial on the basis of this evidence. (6 RT 3601-08.)

As a preliminary matter, Respondent contends that the Mendoza report and Fabre

affidavit do not count as “newly discovered” evidence under the Schlup standard because it

was already presented to the trial court as the basis of Petitioner’s motion for new trial. (MTD

at 31.) The relevant standard, however, is not whether the evidence was “newly discovered,”

but whether the evidence was “introduced to the jury at trial.” See Griffin v. Johnson, 350

F.3d 956, 963 (9th Cir. 2003) (emphasis in original). The Mendoza report and the Fabre

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affidavit qualify as new evidence for the Schlup analysis because it was never introduced to

the jury, which was the trier of fact, during trial. Thus, this evidence is included in the Court’s

probabilistic determination of whether Petitioner has demonstrated actual innocence.

Declaration of Casey Carter

In a declaration dated March 2013, Casey Carter said that he had attended the party but

that Petitioner had left before the kidnapping occurred. (Petition, Exhibit D.) Carter stated

that earlier during the party, Petitioner was drunk, passed out, threw up on himself, and was

taken away from the party at 11:00 p.m. by a girl named Leah. (Id. at 1.) Hours later, at 2:00

a.m., Carter heard Kelly and Ramos arguing over whether they should “jump and rob” the

victim. (Id.) To break up the argument, Carter took Ramos home. (Id.) An hour later, at 3:00

a.m., Carter received a call from Kelly, “from a number that wasn’t hers,” to ask for a ride

from West Covina. (Id.) Carter was unable to give Kelly a ride. (Id.)

Carter also stated that months later, Kelly admitted to him that she had committed the

kidnapping with a person named Mike (also known as “Brim”), and that she and Mike had

framed Petitioner for the crime. (Id.) Carter submitted two photographs of people at the party.

(Id.)

Affidavit of Chantell Marie Barthlett

In April 2013, Chantell Marie Barthlett, also known as “Leah,” provided an affidavit

giving Petitioner an alibi for the time of the kidnapping. (Petition, Exhibit E.) Barthlett stated

that she met Petitioner at the party, that Petitioner appeared to be very intoxicated yet

continued to drink, that Petitioner “passed out” from intoxication at 9:30 p.m., and that

Petitioner was carried to Barthlett’s car. (Id. at 1.) Earlier that night, Barthlett saw Petitioner

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get “into a scuffle” with another African-American male who had a red “M” tattoo on his neck.

(Id. at 1.)

Once Barthlett got Petitioner into her car, she tried to drive him to his sister’s house but

got lost. (Id. at 1-2.) At this point, Barthlett realized that she had left Petitioner’s cell phone,

which was the only way she could contact Petitioner’s sister, at the party. (Id. at 2.) Because

Barthlett had no other way to contact Petitioner’s sister, Barthlett took Petitioner to her own

sister’s house, arriving there at 1:45 a.m. (Id. at 3.) Petitioner slept there and left the next day.

(Id. at 3-4.) Barthlett never saw Petitioner again. (Id. at 4.)

In November 2011, more than three years after the kidnapping and while attending a

concert, Barthlett “quickly recognized” Petitioner’s photograph on a t-shirt worn by a concert-

goer. (Id. at 5.) The concert-goer told Barthlett that Petitioner had been wrongly convicted

because no one could locate Barthlett so she could corroborate Petitioner’s alibi. (Id.)

Attached to Barthlett’s affidavit is a photograph of a sleeping male whom Barthlett claimed

was Petitioner. (Id. at 7.)

Declaration of Rayna Craddock

In a declaration dated in both March 2013 and June 2013, Rayna Craddock stated that

she had witnessed the beating and kidnapping of Tafolla but that Petitioner was not one of the

perpetrators. (Petition, Exhibit F.) Craddock met Petitioner, who appeared to have been

drinking, at the party. (Id. at 1.) Early that evening, Craddock saw Petitioner get into a fight

with somebody named Michael Williams, also known as “Brim.” (Id.) Following the fight,

Craddock saw Petitioner passed out from drinking and being placed in a car. (Id.)

Hours later, Craddock saw the victim being beaten and kidnapped by a group that

included Kelly, Monique, Michael Trejo, and Michael Williams. (Id. at 2-4.) Craddock saw

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Michael Williams hit the victim with a baseball bat, and she saw Trejo place the victim in her

car trunk. (Id. at 4-5.) Then Kelly drove the victim’s car away, with Trejo and Williams

accompanying her. (Id. at 5.)

Craddock arrived home at 2:45 a.m. (Id.) Craddock then received a phone call from

Kelly, “calling from a number that wasn’t hers,” asking for a ride. (Id.) Craddock was unable

to give Kelly a ride. (Id.)

At a gathering approximately two months later, Craddock heard Kelly say that Petitioner

was framed by the actual assailants as revenge for his beating Michael Williams during the

fight at the party. (Id. at 6.) At that same gathering, Michael Williams threatened Craddock

with a gun to keep silent about what she had seen of the kidnapping. (Id.) Craddock also

submitted photographs of people whom she claimed were partygoers on the night of the

kidnapping. (Id. at 8-10.)

Letter and Affidavit of Claudia Montes

In November 2012, Claudia Montes (“Claudia”) wrote a notarized letter to Petitioner’s

appellate counsel stating that she had information proving Petitioner’s innocence. (Petition,

Exhibit G; Lodgment No. 19, Exhibit A.) Claudia claimed that on the night of the kidnapping,

at 2:00 or 3:00 a.m., Kelly called her because she needed a ride. (Id. at 1.) Claudia agreed to

give Kelly a ride. (Id.) When Claudia arrived, Kelly admitted to her that Kelly had beaten the

victim and kidnapped her with the help of an unidentified male. (Id. at 1-2.) Kelly explained

that the victim was targeted for her suspected involvement in the murder of Claudia’s brother,

Frank Montes. (Id. at 2.)

In March 2013, Claudia provided an affidavit stating that, after seeing some old

photographs, she recalled additional details about the night of the kidnapping. (Petition,

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Exhibit G; Lodgment No. 19, Exhibit B.) Claudia now recalled that she had attended the party

in order to pick up a camera that Kelly had borrowed and used; Claudia arrived at the party at

10:45 or 11:00 p.m. and left after 15 or 20 minutes. (Id. at 1.) Hours later, when Claudia

picked up Kelly, Claudia saw Kelly hug a male named “Brim,” who had a large red “M” tattoo

on his neck. (Id. at 2.) During the ride, Claudia heard Kelly call her sister Monique to instruct

her to clean up blood at their house. (Id.) Claudia commented on the cellphone Kelly was

using to call Monique, to which Kelly replied that the cellphone had been left at the party by

one of her brother’s “drunk friends.” (Id. at 2-3.)

Affidavit of Markus Erickson

In December 2012, Markus Erickson provided an affidavit recalling what he saw at the

party and a conversation with Kelly a month after the party. (Petition, Exhibit H.) During the

party, Erickson saw Petitioner drinking and throwing up on himself. (Id. at 1.) Erickson

carried Petitioner to a car with the help of Kelly’s brother, Mark, and saw the car being driven

away by a short Hispanic girl. (Id.) An hour later, as he was leaving the party, Erickson saw

a cell phone that the short Hispanic girl earlier had used before driving away. (Id.) Kelly told

Erickson that the cell phone belonged to Petitioner and gave the phone to Mark. (Id.)

Later that night, at 3:00 a.m., Erickson received a phone call from Kelly from an

unfamiliar phone number. (Id.) Kelly asked Erickson for a ride for Kelly, a male named Brim,

and a male named Minor. (Id.) Kelly also told Erickson that after he left the party, Brim beat

up a girl who was suspected of setting up Kelly to have Kelly’s house shot up. (Id.) Erickson

hung up on Kelly. (Id. at 2.) Kelly called Erickson back to say that the girl had been put in a

car trunk but escaped. (Id.) Erickson told Kelly that he didn’t want to be involved. (Id.)

A month later, Erickson saw Kelly at a different party. (Id.) Kelly told Erickson that

she had called the police anonymously and told them Petitioner was responsible for the beating

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and kidnapping. (Id. at 3.) Kelly also told Erickson that she and Monique picked Petitioner’s

photograph from a six-pack lineup. (Id.) Kelly also told Erickson that Petitioner had left the

party before Erickson did. (Id.)

Affidavit of Robin Storey

In an affidavit from December 2012, Robin Storey detailed what he recalled of the party

and conversations he had after the party. (Petition, Exhibit I.) Storey said that when he arrived

at the party at 6:00 p.m., Kelly and Monique were smoking methamphetamine or crack with a

Hispanic couple. (Id. at 1.) Storey saw Petitioner arrive at the party at 7:00 p.m. (Id.) Storey

noticed that Petitioner was “super drunk” and could not walk straight. (Id.) Storey also saw

Petitioner fight with Kelly’s boyfriend, T-Face Brim. (Id.) Petitioner vomited on himself and

passed out. (Id.) Storey helped carry Petitioner to Leanna Barthlett’s car. (Id.) Storey saw

Barthlett drive away with Petitioner at 10:30 p.m. (Id. at 2.) An hour later, while Storey was

leaving the party, he saw the short Hispanic woman, who had been smoking earlier, drive up

in a black car. (Id.) A couple of days later, Storey learned that the police had been to the

house because of some “bullshit” done by Kelly, Monique, and T-Face Brim. (Id.)

Approximately five months later, in February 2009, Storey saw T-Face Brim at a mall.

(Id.) Storey asked him what had happened on the night of the party. (Id.) T-Face Brim gave

Storey a “weird look” and said “some bullshit” for which the police had locked up somebody.

(Id.) Storey noticed that T-Face Brim had grown out his hair to cover the red “M” tattoo on

his neck. (Id.) T-Face Brim explained that he was “laying low” and “had to change up a few

things.” (Id.)

Years later, near the time of his December 2012 affidavit, Storey saw Barthlett at a mall.

(Id.) Barthlett denied dating Petitioner, said they had met a week before the party, and that

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Petitioner had been incarcerated for something that “they” claimed Petitioner had done on the

night of the party. (Id. at 2-3.)

Letter of Leticia Aguilar

In an undated and unsworn letter, Leticia Aguilar described what she recalled of the

party. (Petition, Exhibit J.) Aguilar stated that she saw Petitioner at the party and saw him

leave at 10:30 or 11:00 p.m. (Id. at 1.) Petitioner appeared very drunk, vomited, and had to

be carried to the car. (Id.) Hours later, at 2:15 a.m., Aguilar saw a tall Mexican man with a

gun and a Mexican girl with a bat. (Id.) The Mexican girl gave the bat to a guy named Mike,

who was wearing baseball gloves. (Id.) Aguilar heard other people at the party calling Mike

by the name “Brim.” (Id.) Aguilar saw Mike swing the bat at a short Mexican girl and hit her

head. (Id.) Aguilar became scared and ran away. (Id. at 1-2.)

Affidavit of Eunita Robinson

In August 2013, Eunita Robinson provided an affidavit about what she recalled of the

party. (Petition, Exhibit K.) Robinson stated that she attended the party with Aguilar and saw

Petitioner there. (Id. at 1.) Robinson noticed that Petitioner was drunk, had to be carried to a

car, and left the party at 10:45 p.m. (Id.) Hours later, at 2:00 a.m., Robinson saw a male

named “Mike/Brim,” who had a red tattoo on his neck, swing a bat and hit a chubby Mexican

girl. (Id. at 1-2.) Robinson and Aguilar ran away from the party. (Id. at 2.)

Affidavit of Danielle Toro

In November 2015, Danielle Toro provided an affidavit detailing a former long-distance

relationship she had with a male named Michael Williams, who was also known as “Brim

Face.” (Petition, Exhibit L.) The relationship lasted from March to July 2015. (Id. at 1.)

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Toro stated that Williams told her about crimes he had committed, including an incident

in which he and an ex-girlfriend had beaten a girl with a bat, stolen her car, and driven around

with her in the trunk. (Id.) Toro didn’t believe the story until Williams showed her a petition

stating that a man named “David Godine” had been “wrongfully convicted” for the crime.

(Id.) Williams told Toro that he had had a “beef” with David Godine, so Williams and Kelly

decided to blame David Godine for the crime. (Id.) In June 2015, Williams seemed very

worried that the police would eventually come for him because of what people were saying

about Petitioner’s innocence. (Id.)

Probabilistic Determination Based on All the Evidence

The federal habeas court must consider “all the evidence, old and new, incriminating

and exculpatory, admissible at trial or not,” and then make a “probabilistic determination about

what reasonable, properly instructed jurors would do.” Lee, 653 F.3d at 938.

The “old” evidence, as summarized above, establishes that Petitioner was implicated as

one of the kidnappers by five different people: Tafolla, Kelly, Monique, Trejo, and Petitioner

himself. Tafolla identified Petitioner during trial (2 RT 358, 360, 394), during an interview

with the police (4 RT 983), and during a six-pack photographic lineup (4 RT 1051). Kelly

identified Petitioner during trial (2 RT 465, 469), during an interview with the police (4 RT

948), and during a six-pack photographic lineup (4 RT 1051-52).

Petitioner during interviews with the police (4 RT 957, 960) and during a six-pack

photographic lineup (4 RT 1052), but not during trial (3 RT 620, 648, 651-52, 684). Trejo did

not identify Petitioner at trial but did identify him during an interview with the police, in which

he said that Petitioner hit the victim with a baseball bat and placed her in the trunk of her car.

(5 RT 1381, 1383, 1385-86, 1389-91.) Finally, Petitioner implicated himself by calling

Monique shortly after the kidnapping to explain why he had participated in the kidnapping

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and to instruct her about washing the victim’s bloodstains from the cement in front of her

house. (4 RT 959-60.)

The new evidence, as summarized above, raises several theories of actual innocence:

(1) the victim, Tafolla, had doubts that Petitioner was one of her kidnappers; (2) Petitioner

was intoxicated and left the party hours before the victim was kidnapped; (3) a person named

T-Face Brim, rather than Petitioner, committed the kidnapping; and (4) Kelly, rather than

Petitioner, phoned people for help and, in particular, Kelly phoned Monique to instruct her to

cover up the victim’s bloodstains.

The new evidence must be considered collectively rather than individually, and

considered in light of all the old evidence, to determine whether Petitioner has demonstrated

a gateway claim of actual innocence. See House, 547 U.S. at 539 (describing the Schlup

inquiry as depending upon a “holistic judgment about all the evidence,” rather than upon

“discrete findings regarding disputed points of fact”) (internal quotation marks omitted). In

order to account for the voluminous new evidence in adequate detail, however, the Court

discusses below each of Petitioner’s theories in turn. See Lee, 653 F.3d at 943-45 (organizing

new evidence into three broad categories in order to consider actual innocence claim).

Victim’s doubts about the identity of the kidnapper

The jury heard evidence that the victim, Tafolla, repeatedly and consistently identified

Petitioner as one of her kidnappers. (2 RT 358, 360, 394; 4 RT 983, 1051.) But in November

2014, more than five years after the trial ended in July 2009, an investigator, hired by people

close to Petitioner, interviewed Tafolla and prepared a report stating she had doubts. Tafolla

told the investigator that she “was never 100% sure of [Petitioner] being the person who

attacked me, since I never saw the person, and I only briefly observed a male Black after being

placed in the trunk of my car, and during that time I was in and out of consciousness.”

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(Petition, Exhibit A.) The investigator eventually prepared a written report of Tafolla’s

interview because she had declined to memorialize it in her own signed and recorded

statement. (Id.)

For several reasons, the investigative report of what Tafolla said during her post-trial

interview is not convincing evidence of Petitioner’s actual innocence. First, the report is

“particularly suspect” because it “consist[s] of hearsay.” See Herrera v. Collins, 506 U.S.

390, 417 (1993).

unwillingness to memorialize her interview responses into a signed and recorded statement.

Cf. Schlup, 513 U.S. at 331 (finding that the “sworn testimony of several eyewitnesses that . . .

[the petitioner] was not involved in the crime” raised a sufficient issue that required further

factual development) (emphasis added).

Tafolla’s hearsay statement is rendered even more suspect by her

Second, Tafolla’s statement is not a true recantation, but is at most an expression of her

post-trial doubts about the identity of one of her kidnappers. As such, it is minimally

persuasive. See Stewart v. Cate, 757 F.3d 929, 939-40 (9th Cir. 2014) (rejecting actual

innocence claim based in part on victim’s post-trial statement that he was now unsure who had

shot him); Knickerbocker v. Wolfenbarger, 212 F. App’x 426, 433 (6th Cir. 2007) (finding

eyewitness’s post-trial affidavit that he is “now uncertain” of his trial testimony to be

“minimally persuasive evidence” of actual innocence). Even if Tafolla had offered a genuine

recantation of her identification, it would not be enough to prove Petitioner’s actual innocence.

See Jones v. Taylor, 763 F.3d 1242, 1249-51 (9th Cir. 2014) (holding that recantations by

witnesses, including the victim, were insufficient to satisfy the Schlup standard, much less the

higher standard for a freestanding claim of actual innocence); Doe v. Menefee, 391 F.3d 147,

165-73 (2d Cir. 2004) (holding that the recantation of the victim did not satisfy the Schlup

standard). Post-trial recantations generally should be regarded with suspicion because of the

nature of such evidence. See Jones, 763 F.3d at 1248 (“Recanting testimony is easy to find

but difficult to confirm or refute: witnesses forget, witnesses disappear, witnesses with

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personal motives change their stories many times, before and after trial.”) (citing Carriger v.

Stewart, 132 F.3d 463, 483 (9th Cir. 1997) (Kozinski, J., dissenting)); Davis v. Bradshaw, 900

F.3d 315, 330 (6th Cir. 2018) (“[The witness’s] recantation amounts to another change in his

story. This alone could make it more difficult for a reasonable juror to find it reliable.”).

Third, the timing and circumstances of the victim’s hearsay statement in November

2014, more than five years after the end of Petitioner’s trial in July 2009, also bears adversely

on the persuasiveness of that statement. See McQuiggin, 569 U.S. at 385 (“Unexplained delay

in presenting new evidence bears on the determination whether the petitioner had made the

requisite showing.”); Schlup, 513 U.S. at 332 (“[T]he court may consider how the timing of

the submission and the likely credibility of the affiants bear on the probable reliability of the

evidence.”). Other than a vague statement about being in fear of her life, the victim gave no

comprehensive explanation for why she waited more than five years to express her doubts for

the first time, and why she did so not of her own accord but only after being approached by an

investigator hired by people close to Petitioner. And the victim gave no explanation at all for

why, if she feared for her life and was always doubtful of Petitioner’s identity, she

unequivocally and repeatedly identified him before and during trial as one of the kidnappers.

Finally, Tafolla’s post-trial hearsay statement is not compelling evidence of Petitioner’s

actual innocence because the jury heard evidence that four other people — Kelly, Monique,

Trejo, and Petitioner himself — unequivocally implicated Petitioner as one of the kidnappers.

As such, even if Tafolla may have misidentified Petitioner (which has not been shown

conclusively), the overall risk of misidentification is slight. See Hayes v. Battaglia, 403 F.3d

935, 938 (7th Cir. 2005) (“[Petitioner] was convicted on the testimony of six eyewitnesses.

The risk that all six independently made the same mistake is slight.”)

///

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Petitioner’s intoxication and departure from the party

Many of the new witnesses stated that Petitioner appeared to be extremely intoxicated

during the party. Most of them — Carter, Barthlett, Craddock, Erickson, Storey, Aguilar, and

Robinson — stated that Petitioner passed out and was taken away from the party hours before

Tafolla was kidnapped. (Petition, Exhibits D, E, F, H, I, J, K.) The most significant of these

witnesses was Barthlett, who gave Petitioner an alibi. Barthlett stated that she drove Petitioner

away from the party before the kidnapping occurred and then let him sleep at her sister’s house

until the next morning. (Id., Exhibit E.)

This new evidence of Petitioner’s intoxication is not persuasive enough to demonstrate

a gateway claim of actual innocence. As an initial matter, the only eyewitness to Petitioner’s

intoxication who apparently was willing to subject himself to cross-examination was Dustin

Fabre, whose affidavit was the basis of Petitioner’s motion for new trial. The post-trial

affidavits of the other witnesses are suspect on their face because they were provided years

after the trial ended and were “obtained without the benefit of cross-examination.” Herrera,

506 U.S. at 417. “Experience has shown . . . that such affidavits are to be treated with a fair

degree of skepticism.” Id. at 423 (concurring op. of O’Connor, J.). For the most part, no

explanation is apparent for why these affiants failed to come forward during the trial,

especially because many of them — Carter, Craddock, Erickson, and Storey — would have

been aware long before the trial started in July 2009 that Petitioner had been wrongly accused

of the kidnapping. (Petition, Exhibits D, F, H, I.) Nor is there any persuasive explanation for

why none of these witnesses came forward with their accounts more than a year later in

January 2011, when Petitioner brought a motion for new trial, based on the affidavit of Fabre,

raising a substantially similar account of Petitioner’s extreme intoxication.

In any event, most of these witnesses’ accounts do not seriously call into question the

prosecutor’s evidence of what happened at the time of the kidnapping. The statements of most

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of these witnesses — Fabre, Carter, Erickson, Storey, Aguilar, and Robinson — have minimal

probative value because they did not see the actual kidnapping. (Although Aguilar and

Robinson stated they did see the victim being hit with a bat, they admitted they fled from the

party before they saw anything more.) Thus, these witnesses’ statements about Petitioner’s

intoxication and departure from the party do not show Petitioner’s actual innocence of a

kidnapping committed hours later. See Jones, 763 F.3d at 1249 (rejecting claim of actual

innocence based on two new witnesses “[b]ecause neither witnessed the abuse”) (citing Cox

v. Burger, 398 F.3d 1025, 1031 (8th Cir.2005) (discounting testimony from a witness who was

not present at the scene of the crime in assessing an actual innocence claim). As the trial court

similarly reasoned, in rejecting the affidavit of Fabre as a basis for granting a new trial, even

if Petitioner was extremely intoxicated sometime during the party, it did not necessarily

preclude Petitioner from participating in the kidnapping hours later. (6 RT 3607-08.)

Even the account of the strongest witnesses, Barthlett, should be treated with skepticism

because of the circumstances in which she offered her alibi account. Barthlett does not explain

how she “quickly recognized” Petitioner’s photograph on a t-shirt in November 2011, more

than three years after meeting Petitioner in August 2008, for the first and only time, during a

seemingly uneventful encounter where he mostly was unconscious from excessive drinking.

See Houck v. Stickman, 625 F.3d 88, 96 (3d Cir. 2010) (rejecting actual innocence argument

where a new alibi witness “does not explain the basis for her ability to identify someone she

claims to have seen more than seven years earlier in what must have been an uneventful

encounter”). But even accepting at face value Barthlett’s explanation about her immediate

recognition of Petitioner despite the passage of more than three years, she still fails to explain

why, after learning in November 2011 that Petitioner had been wrongfully convicted because

she could not be located to corroborate his alibi, she then waited more than one year until April

2013 to come forward with the alibi.

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Finally, even if the statements of these witnesses, particularly Bartlett, are accepted at

face value, they are strongly countered by the five people who implicated Petitioner at trial:

Tafolla, Kelly, Monique, Trejo, and Petitioner himself. Unlike most of the new witnesses

discussed above who saw only Petitioner’s intoxication, these five people actually saw or

participated in the kidnapping hours later. And unlike Barthlett, who met Petitioner only once,

two of the people who repeatedly identified Petitioner, Kelly and Monique, were well-

acquainted with Petitioner because they had known him for at least a month before the

kidnapping. (2 RT 456; 3 RT 611.)

Commission of the kidnapping by T-Face Brim

Several of the new witnesses stated that a person named T-Face Brim, not Petitioner,

participated in the kidnapping of Tafolla. Eight of the new witnesses — Carter, Craddock,

Montes, Erickson, Storey, Aguilar, Robinson, and Toro — stated in effect that Petitioner was

either mistakenly identified or framed by the actual kidnappers in order to protect T-Face

Brim. (Petition, Exhibits D, F, G, I, J, K, L.)

This new evidence is not persuasive evidence of Petitioner’s actual innocence for several

reasons. First, much of this evidence was based on hearsay or only partial observations. Five

of the witnesses — Carter, Montes, Erickson, Storey, and Toro — essentially repeated

statements they heard from others about T-Face Brim’s involvement in the kidnapping. Their

statements are “particularly suspect” because they were based on hearsay. See Herrera, 506

U.S. at 417.

observations because they fled the party before the actual kidnapping but after seeing someone

they believed was T-Face Brim hit the victim with a bat. And one of the witnesses, Montes,

merely supplemented her initial statement with a second statement claiming that she saw

someone she believed was T-Face Brim hug Kelly after the kidnapping was already over.

These accounts have limited persuasive value because they were not based on the witnesses’

Two of the witnesses — Aguilar and Robinson — offered only partial

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direct observations of the actual crime. See Jones, 763 F.3d at 1249. Of the eight witnesses

who implicated a person named T-Face Brim, only one of them, Craddock, claimed to have

actually witnessed the kidnapping in its entirety and excluded Petitioner as a suspect.

Second, the jury was already well aware of a suspect named T-Face Brim yet rejected

Petitioner’s theory of misidentification on this basis. See Lee, 653 F.3d at 944 (rejecting actual

innocence claim where the crux of the new evidence “was presented to Lee’s jury”); see also

Jones, 763 F.3d at 1250 (same where “many of the issues” raised by the new evidence “were

presented to the jury at trial). Indeed, Petitioner’s theory of T-Face Brim’s involvement in the

kidnapping was raised repeatedly, during Kelly’s testimony (2 RT 491, 504, 505, 530-33),

Monique’s testimony (3 RT 651), Ramos’s testimony (5 RT 1349-50), and closing argument

by Petitioner’s counsel (6 RT 1583, 1585). Given how thoroughly this theory was presented

to the jury, it is unlikely that the new evidence, even Craddock’s eyewitness account, would

have had added any significant impact.

Finally, the new evidence implicating T-Face Brim falls far short of the high evidentiary

standard for proving a different perpetrator had committed the crime, as a theory of actual

innocence. Cases that satisfy the standard generally involve, at a minimum, a credible

confession from the actual perpetrator. See Larsen v. Soto, 742 F.3d 1083, 1096-98 (9th Cir.

2013) (finding actual innocence shown in part where the actual perpetrator submitted a

declaration admitting culpability); Carriger, 132 F.3d at 467, 478-79 (same in part where the

actual perpetrator gave a confession under oath, albeit a confession he later recanted); House,

547 U.S. at 549-53 (same in part where two disinterested witnesses said the victim’s husband

had confessed to the crime, and their accounts were corroborated by multiple witnesses who

saw the husband commit domestic abuse). Here, Petitioner’s new evidence not only fails to

include a confession or any other statement from T-Face Brim, but also fails to prove

persuasively that such a person was at the crime scene or even exists. At best, Petitioner’s

theory of actual innocence consists of affidavits “vouching for a defendant and incriminating

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a conveniently absent suspect.” See House, 547 U.S. at 552 (citing Herrera, 506 U.S. at 423

(concurring op. of O’Connor, J.)).

Phone call made by Kelly, not Petitioner

The jury heard evidence that Petitioner called Monique shortly after the kidnapping to

admit his participation in the kidnapping and to instruct her to clean up the victim’s

bloodstains. (4 RT 959-60.) Evidence that a defendant admitted involvement in the crime

renders it extremely difficult for him to demonstrate his actual innocence. See Griffin, 350

F.3d at 964 (petitioner failed to show actual innocence through new evidence of his mental

illness where he previously had admitted the reasons for killing the victim); Doe, 391 F.3d at

166 (same where petitioner’s prior statements indicated his guilt of the crimes); Lucidore v.

New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000) (same where petitioner

admitted to the crime and made several inculpatory statements); see also United States v.

Cervini, 379 F.3d 987, 993 (10th Cir. 2004) (rejecting actual innocence argument where

defendant had admitted to the critical facts of the crime, because “it simply is not probable

that no reasonable juror would find him guilty beyond a reasonable doubt — no matter what

an expert might now say”).

Petitioner’s new evidence includes the statements of several witnesses who collectively

suggest it was Kelly, not Petitioner, who participated in the kidnapping and then used

Petitioner’s phone to make incriminating phone calls. One of the witnesses, Montes, stated

that she heard Kelly call Monique shortly after the kidnapping to instruct Monique to clean

bloodstains at their house, and that Kelly admitted the phone she was using to call Monique

had been left at the party by one of her brother’s “drunk friends.” (Petition, Exhibit G.)

Another witness, Barthlett, stated that Petitioner left his cell phone at the party before she

drove him to her sister’s house to sleep. (Id., Exhibit E.) Another witness, Erickson, stated

that after Petitioner left the party, Erickson saw a cell phone that Kelly claimed belonged to

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Petitioner and that later that evening, he received a phone call from Kelly from an “unfamiliar”

number asking for a ride. (Id., Exhibit H.) Two other witnesses, Carter and Craddock,

similarly stated that on the night of the kidnapping, they received a phone call from Kelly,

“from a number that wasn’t hers,” asking for a ride. (Id., Exhibits D, F.)

Petitioner’s new evidence does not negate the evidence heard by the jury that he called

Monique and admitted involvement in the kidnapping. The new evidence does not even

conclusively establish that Kelly used Petitioner’s phone on the night of the kidnapping, but

only suggests it by raising the possibility that Petitioner was the “drunk friend” who left his

phone at the party. Moreover, the evidence heard by the jury did not identify the specific

phone that Petitioner used to call Monique. (4 RT 959-60.) Thus, even accepting at face value

the witnesses’ suggestion that Kelly used Petitioner’s phone on the night of the kidnapping,

this would not preclude the possibility that Petitioner called Monique from a different phone

or from his own phone after recovering it. Thus, this new evidence offers, at most, facts that

are subject to alternative interpretations, not a clear-cut refutation of the facts presented to the

jury. See Araujo v. Chandler, 435 F.3d 678, 681 (7th Cir. 2005) (rejecting actual innocence

argument “where the support for the claim of actual innocence involved facts which were

subject to interpretation — that is, the claim of innocence was not clear-cut. It was not DNA

evidence conclusively ruling him out as the perpetrator, for instance.”). Accordingly, the new

evidence regarding the loss of Petitioner’s phone on the night of the crime is not persuasive

evidence of his actual innocence.

Conclusion as to Actual Innocence

Based upon a probabilistic determination of what reasonable jurors would do after

hearing all the evidence, old and new, Petitioner has not shown that it is more likely than not

that no reasonable juror would have convicted him in light of the new evidence. Taken

collectively, the new evidence, although voluminous, does not include any “new and reliable

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physical evidence, such as DNA, that would preclude any possibility of [petitioner’s] guilt.”

Jones, 786 F.3d at 1251 (citing Carriger, 132 F.3d at 477). Rather, Petitioner’s actual

innocence argument is based almost entirely on eyewitness statements that are subject to

differing interpretations. And a reasonable juror could treat such statements with suspicion

because many were produced after unexplained delays, from witnesses who do not all appear

disinterested in Petitioner’s exoneration. See Jones, id.; see also House, 547 U.S. at 552

(commenting that statements from disinterested witnesses who come forward “with no evident

motive to lie” have more probative value than statements from “inmates, suspects, or friends

or relations of the accused”).

inconsistent with the evidence adduced at trial, and in particular squarely “inconsistent with

petitioner’s own admission of guilt.” Herrera, 406 U.S. at 424 (concurring op. of O’Connor,

J.) Petitioner’s voluminous new evidence “offers no plausible excuse” for this damaging piece

of evidence. See id.

Moreover, the new eyewitness statements are directly

An example of the type of case that the Supreme Court found strong enough to meet the

stringent Schlup standard further illustrates why this case falls short. In House, a habeas

petitioner convicted of murder produced not only substantial evidence of a confession from a

different suspect, but also DNA and blood evidence that called into question the central

forensic proof connecting the petitioner to the murder. See 547 U.S. at 554. But even with

the strength of this new evidence, the Supreme Court found that, although the Schlup standard

had been met, the issue still was “close” and arguable. See id. By comparison, Petitioner has

offered no concrete and persuasive proof pointing to a different suspect, and no objective

evidence that would tend to exonerate him.

At most, Petitioner’s new evidence shows “that it is possible that a jury would not have

convicted” him of kidnapping. See Shumway, 223 F.3d at 990. But it does not show that “no

juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.”

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Schlup, 513 U.S. at 329. Accordingly, Petitioner has failed to demonstrate that he qualifies

for an actual innocence exception to the AEDPA statute of limitations.

Request for an Evidentiary Hearing on Actual Innocence

Petitioner has requested an evidentiary hearing on his claim of actual innocence. (Dkt.

No. 54 at 1.) “[W]hen considering an actual-innocence claim in the context of a request for

an evidentiary hearing, the District Court need not ‘test the new evidence by a standard

appropriate for deciding a motion for summary judgment,’ but rather may ‘consider how the

timing of the submission and the likely credibility of the affiants bear on the probable

reliability of that evidence.’” House, 547 U.S. at 537 (quoting Schlup, 513 U.S. at 331-32).

But “[n]o controlling legal standard exists regarding whether the credibility assessment

contemplated in Schlup requires an evidentiary hearing and if so, under what circumstances.”

Stewart, 757 F.3d at 941 (footnote omitted). “Generally, in this Circuit, a habeas petitioner

should receive an evidentiary hearing when he makes ‘a good-faith allegation that would, if

true, entitle him to equitable tolling.’” Id. (quoting Roy v. Lampert, 465 F.3d 964, 969 (9th

Cir. 2006)); see also Sibley v. Culliver, 377 F.3d 1196, 1206 (11th Cir. 2004) (“The petitioner

must make a threshold showing of actual innocence to warrant a hearing.”) (citation omitted).

Even if all the allegations arising from Petitioner’s new evidence were accepted at face

value, they would not entitle to him an equitable exception to the AEDPA statute of limitations

based on actual innocence. An evidentiary hearing would not alter the fact that Petitioner was

implicated in the kidnapping by five different people, including himself. Although Petitioner’s

new evidence does purport to devastate the credibility of one of the prosecutor’s major

witnesses, Kelly, it does not significantly alter, much less negate, the identifications of the

four other people who independently implicated Petitioner. See Stewart, 757 F.3d at 942

(finding no abuse of discretion in declining to hold an evidentiary hearing on a Schlup gateway

argument where, even if the newly-presented evidence discredited the prosecutor’s eyewitness

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testimony, “sufficient direct and circumstantial evidence independent of their testimony

placed [petitioner] and his car at the scene of the shooting”); Arnold v. Dittman, 901 F.3d 830,

839 n.7 (7th Cir. 2018) (recognizing that an evidentiary hearing on actual innocence may not

be required where “there was additional evidence of the petitioner’s guilt” unaffected by the

newly proffered evidence); see also Sistrunk v. Armenakis, 292 F.3d 669, 674 (9th Cir. 2002)

(affirming denial of actual innocence claim without an evidentiary hearing where, even though

the newly proffered evidence would have “devastated” the credibility of a major witness, “it

would not have cast doubt” on another witness who positively identified petitioner).

Indeed, none of the critical eyewitnesses, including the victim, have recanted. At most,

the victim expressed doubts, years after the trial ended, about her identification. (Petition,

Exhibit A.) Thus, an evidentiary hearing would not change the fact that four separate

eyewitnesses — Tafolla, Kelly, Monique, and Trejo — each continue to identify Petitioner as

one of the kidnappers. See Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002)

(rejecting need for an evidentiary hearing on petitioner’s actual-innocence claim where

“[n]one of the proffered evidence involves a recantation by the victim or the other children

who witnessed petitioner kissing her”).

Nor would an evidentiary hearing change the fact that the jury heard damaging evidence

that Petitioner called Monique to admit his involvement in the kidnapping and to instruct her

to clean up the crime scene. Nothing suggests that the source of this evidence — the testimony

of Detective Guerrero, who interviewed Monique about the phone call she received from

Petitioner — has been negated by, for example, objective and disinterested evidence proving

Detective Guerrero recanted or fabricated this testimony. Although Petitioner claims there is

evidence that Detective Guerrero committed misconduct while investigating this case (Dkt.

No. 46-2 at 28-29), such evidence consists almost entirely of Petitioner’s own self-serving

declaration (Dkt. No. 48-1 at 7-8), and none of it goes specifically to the issue of Detective

Guerrero’s testimony about Petitioner’s phone call to Monique. Moreover, impeachment

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evidence, such as evidence of police misconduct, generally falls far short of demonstrating a

petitioner’s actual innocence. See Calderon, 523 U.S. at 563 (commenting that impeachment

evidence provides no basis for finding a miscarriage of justice because it “is a step removed

from evidence pertaining to the crime itself”); Gandarela, 286 F.3d at 1086 (“[S]peculative

and collateral impeachment falls far short of showing actual innocence.”); see also McDowell

v. Lemke, 737 F.3d 476, 483-84 (7th Cir. 2013) (rejecting actual innocence claim based on a

petitioner’s voluminous evidence of a detective’s alleged misconduct, because it was not

“powerful evidence” of innocence such as DNA evidence, and because it was only “collateral”

evidence that could not “definitely prove” the detective had framed petitioner).

In sum, even if all of Petitioner’s new witnesses testified at an evidentiary hearing in a

manner fully consistent with their proffered statements, it would not change the fact that a

reasonable juror still could find Petitioner guilty because several other people, including

Petitioner himself, independently implicated him as one of the kidnappers.

evidentiary hearing would serve no useful purpose, and Petitioner’s request for a hearing

should be denied.

Thus, an

III.

Conclusion

The Petition is untimely by more than two years. Petitioner has not demonstrated that

he is entitled to a sufficient period of statutory tolling, any period of equitable tolling based on

extraordinary circumstances, or an equitable exception based on actual innocence. Nor is an

evidentiary hearing necessary to resolve Petitioner’s claim of actual innocence. Moreover,

because the Petition is untimely in the first instance, Petitioner’s requests for amendment of

his Petition and for a Rhines stay should be denied. In sum, the Petition should be denied as

untimely, and this action should be dismissed with prejudice.

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RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order:

(1) accepting and adopting this Report and Recommendation; (2) denying Petitioner’s requests

for amendment and a stay of the Petition; and (3) denying the Petition as untimely filed and

dismissing this action with prejudice.

DATED: January 7, 2019

___________________________________

KAREN L. STEVENSON

UNITED STATES MAGISTRATE JUDGE

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be

subject to the right of any party to file objections as provided in the Local Rules Governing

the Duties of Magistrate Judges and review by the District Judge whose initials appear in the

docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure

should be filed until entry of the judgment of the District Court.

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HILARY POTASHNER (Bar No. 167060)

Federal Public Defender

MICHAEL T. DRAKE (Bar No. 225773)

(Email: michael_drake@fd.org)

Research and Writing Attorney

321 East 2nd Street

Los Angeles, CA 90012-4202

Telephone: (213) 894-5355

Facsimile: (213) 894-0081

Attorneys for Petitioner

DAVID JAMES GODINE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No. CV 16-2534-ODW (KS)

DAVID JAMES GODINE,

Petitioner,

FIRST AMENDED PETITION

FOR WRIT OF HABEAS

CORPUS; EXHIBITS

WARREN MONTGOMERY,

Respondent.

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CONTENTS

I. INTRODUCTION ......................................................................................... 1

II. PROCEDURAL HISTORY AND JURISDICTIONAL ALLEGATIONS ... 2

III. STATEMENT OF FACTS ......................................................................... 5

David Godine goes to a party and later leaves drunk and

unconscious. ................................................................................... 5

Hours after Godine leaves, Rebecca Tafolla is bludgeoned,

kidnapped, and terrorized, but miraculously escapes. ................. 8

Godine wakes up at a friend’s place. ............................................. 8

Sheriff’s deputies question Tafolla at the hospital ....................... 9

Detective Guillermo Guerrero questions Kelly and Monique

Samaniego.................................................................................... 10

Two days later, Guerrero follows up with Tafolla. ..................... 11

Guerrero interviews Tafolla again two weeks later. .................. 11

That same day, Guerrero interviews Monique—and

encounters Godine. ...................................................................... 12

Godine checks in with his parole officer and gets

photographed—showing him without the tattoo he would get

on his neck days later. ................................................................. 13

Kelly and Monique Tafolla identify Godine from his parole

officer’s photograph—without mentioning the absent tattoo. .... 14

That evening, Godine has one last get-together with the

Samaniegos. ................................................................................. 14

The next day, Godine gets arrested for a “failure to appear.” .... 15

In jail, Godine encounters Guerrero again. And again............... 16

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CONTENTS

Tafolla identifies Godine from the parole photo as a neverbefore-mentioned second man standing by the trunk during

her kidnapping............................................................................. 17

Guerrero uses Tafolla’s identification of Godine to put the

pressure on................................................................................... 18

Godine transfers to county, where he learns that Guerrero

filed a false report about their jailhouse interviews. .................. 20

Godine tells his trial counsel Charles Uhalley and

investigator Daniel Mendoza what happened. ........................... 20

At the preliminary hearing, Tafolla for the first time says

that Godine jokingly swung a baseball bat. ................................ 22

At trial, Tafolla’s account continues to evolve, and the

prosecution is forced to impeach its own witnesses. ................... 23

After Godine is found guilty, nearly a dozen witnesses come

forward with declarations that attest to his innocence, but

the state courts deny him relief or a hearing.............................. 25

IV. TIMELINESS .......................................................................................... 27

V. CLAIMS FOR RELIEF ............................................................................. 29

Ground One: Trial counsel was constitutionally ineffective. ..... 29

Uhalley unreasonably failed to consult with an expert

on memory. ......................................................................... 30

Uhalley unreasonably failed to get Tafolla’s medical

records................................................................................. 31

Uhalley inadequately cross-examined Tafolla. .................. 31

Uhalley inadequately cross-examined Guerrero. .............. 33

Uhalley conducted ineffective direct examination of

Crovetti. .............................................................................. 35

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CONTENTS

Uhalley failed to call a witness who he knew could

testify that “Brim” was Kelly’s boyfriend. ......................... 35

Uhalley ineffectively crossed the sheriff’s deputy. ............ 36

Uhalley unreasonably failed to request Pitchess

materials ............................................................................. 37

Uhalley unreasonably failed to request other discovery. .. 37

10.

Uhalley inadequately discussed with Godine the actual

costs and benefits of testifying, and failed to inform him

that whether to testify was his decision. ........................... 39

11.

Uhalley failure to adequately investigate and present

Barthlett’s alibi evidence.................................................... 39

12.

Uhalley failed to interview or reasonably investigate

other witnesses ................................................................... 40

13.

Uhalley unreasonably failed to move to reopen after the

prosecutor’s improper argument. ....................................... 42

14.

Taken together, these unprofessional errors prejudiced

Godine. ................................................................................ 42

Ground Two: The prosecution violated due process by using

or failing to correct false evidence. .............................................. 43

Ground Three: The prosecution violated due process by

engaging in misleading argument............................................... 44

Ground Four: Even if Godine had been there during the

kidnapping, the evidence was constitutionally insufficient to

prove specific intent to commit kidnapping for carjacking. ....... 45

Ground Five: Appellate counsel was constitutionally

ineffective for failing to challenge the sufficiency of the

evidence to prove Godine’s specific intent................................... 46

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CONTENTS

Ground Six: The cumulative effect of the constitutional

violations rendered Godine’s trial fundamentally unfair. .......... 47

VI. PRAYER FOR RELIEF ........................................................................... 48

VERIFICATION OF PETITION ................................................................... 50

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136. She noted that during the first stop on the rode when Trejo opened

the trunk, Godine didn’t do or say anything. (CT 20.)

137. Another thing she claimed to remember at this point was that she’d

seen Godine earlier in the day around noon when she’d dropped Trejo off at

the house. (RT 37.)

138. Finally, asked on cross whether Trejo was “the only person” she

saw “there at the trunk,” she replied, “Yeah -- but --. [¶] “Q. That’s right? [¶]

A. Yes.” (CT 55.)

S. At trial, Tafolla’s account continues to evolve, and the

prosecution is forced to impeach its own witnesses.

139. At trial, Tafolla’s version of events remained the same in some

respects, but changed in others.

140. Again, when Trejo opened the trunk, she was lying on her right side

(RT 358), head facing the driver’s side. (RT 420.) The trunk opened and

Trejo and the other man were standing there. (RT 358.) The second man

was by her feet. Her focus was mainly on Trejo. (RT 420.)

141. But she said that her vision was “blurry,” as if she was “dreaming.”

(RT 367.)

142. She also expressly said that during her earlier trips with Ramos

and Trejo, Godine had not gone with. (RT 351, 354.)

143. She added that she remembered there being at least 9 other people

at the party once she got back to the house. (RT 400–01.) Three or four of

them were young black males. (RT 401.)

144. She still couldn’t remember whether the horseplay with the

baseball bat occurred before she was standing in the hallway or after. (RT

392.) And she wasn’t sure whether she’d wound up in the hallway before or

after trip to the back yard. But being in the hallway was her “last memory.”

(RT 406.) She just couldn’t remember the sequence of events. (RT 407–08.)

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145. The only other two of the partiers called by the prosecution were

Kelly and Monique, the two sisters who lived at the house. Guerrero

testified that both had been “lying” and “evasive” to him and other officers

(CT 110, 111), and both admitted the same thing at trial. (RT 530 (Kelly),

668 (Monique).) Moreover, their accounts at trial would continue to conflict

with their own earlier testimony, as well as Guerrero’s reports and trial

testimony. And one them (Monique) would be implicated in covering up the

crime. (RT 961.)

146. Kelly told the jury that on the day of the party she’d invited some

friends over because her parents were out of town. Trejo arrived in the late

afternoon and introduced her to Tafolla. Godine showed up later with

Kelly’s brother Mark. Kelly testified Tafolla was in and out of the Covina

house several times. She said that Tafolla and Trejo—but not Godine—went

to a 7–Eleven at one point. (RT 460.)

147. Around midnight, she said, Trejo, Ramos, and Godine were at the

house along with her, Tafolla, Monique and Mark. Several times, Kelly

heard Trejo say “he was going to kick [Tafolla’s] ass” and that “he was going

to beat her and hold her hostage for her car.” (RT 468.)Kelly walked Tafolla

to her car, but later saw Godine and Trejo dragging Tafolla from the

backyard toward her car. (RT 465.)

148. Ramos was standing by the driver’s door of Tafolla’s car. Trejo told

Tafolla to shut up and he punched her. Kelly said she could see that Tafolla

had been badly beaten, bleeding from her head and face. Trejo opened the

trunk and threw Tafolla inside. Trejo, Ramos, and Godine then got into

Tafolla’s car and took off, Ramos driving. (RT 469, 470–73.)

149. But this conflicted with her testimony at the preliminary hearing.

There she said Kelly had said only that she saw Trejo and a “black male”

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(CT 81.) She’d said it was too dark, and she couldn’t see that far. (CT 82; RT

497.) And she said she never told Guerrero otherwise. (CT 95, 97.)

150. Then there was Monique. On her account, Godine played no role at

all. She saw Trejo at the side gate holding Tafolla from behind, as they went

toward the front of the house where Tafolla’s car was parked. (RT 618.)

Tafolla was crying and Trejo told her to shut up. (RT 679.) Monique went

inside and locked the door. She heard Tafolla’s car drive off. (RT 624.) That

was it.

151. She repeatedly said that she never saw Godine get into the car. (RT

620, 652, 684.) She’d testified that she had never told Guerrero otherwise.

(RT 651–52.) And she testified, accurately, that she’d given the same

testimony at the preliminary. (RT 651–52. See also CT 95.)

152. She also denied at trial having told Guerrero that “Brim” had called

her after the abduction telling her it was to protect them from an attack by

rival gang members, and asking her to cover up the blood in the backyard.

(RT 684.)

153. In the end, Uhalley never called any witnesses or offered any

evidence at trial to try to prove that Godine had left the party with

Barthlett—and that Godine thus could not have been involved in the

assault on Tafolla.

T. After Godine is found guilty, nearly a dozen witnesses come

forward with declarations that attest to his innocence, but

the state courts deny him relief or a hearing.

154. Godine, Trejo, and Ramos were all found guilty.

155. After the verdict, Uhalley learned about a young beat maker named

Dustin Fabre who had attended the party hoping to get Godine to rap over

some of his beats. (CT 523.) Fabre stated that he’d gone to the party, that

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assault, and to conspiring with Kelly to frame Godine for it. (Ex. 10:60

(Danielle Toro).)

162. Finally, in 2014, Tafolla would talk to an investigator named

Gerard Brown, who declared that she told him that there’d been about 15

people at the party that night, five or six of them black and who she didn’t

know; that she’d never seen her attacker, and had harbored doubts about

Godine’s guilt; and that Kelly and Monique had approached her after trial

and said she’d sent the wrong person to jail. (Ex. 1:2.)

163. Despite all of this, and indeed without even mentioning any of it,

the state courts repeatedly denied Godine relief or an evidentiary hearing.

See supra, Part II.25–30.

164. In April 2016 Godine filed his pro se habeas petition in this Court.

The Court appointed the Office of the Federal Public Defender about 16

months later to represent Godine in the matter. (ECF No. 22.) Undersigned

counsel was assigned to the case in late September 2017. A reply by the

Warden was pending until that December. (ECF No. 31.)

165. In the months that followed, and after reviewing thousands of

pages of records, retaining an expert, conducting more investigation, and

evaluating Godine’s claims, undersigned counsel concluded that Godine

should amend his petition and raise new claims.

166. This amended petition follows.

IV.

TIMELINESS

167. Godine’s petition is properly before the Court because he meets the

“actual innocence” gateway under Schlup v. Delo, 513 U.S. 298 (1995),

which provides an exemption from AEDPA’s one-year statute of limitations

period. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).

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168. To meet the Schlup standard, Godine must show that “more likely

than not,” no reasonable juror would have convicted him. Id. at 390.

169. Godine meets that standard.

170. On the one hand, his allegations in Parts III.A and B above

establish a clear alibi: During the attack on Tafolla, he was nowhere near

the area, and drunk to the point of unconsciousness. The alibi is in all

relevant aspects corroborated by one witness. (See generally Ex. 3:11–13

(Barthlett).) And some aspects of it are corroborated by several others—

those who saw him leave the party; those who saw the assault on Tafolla

and confirm that Godine was not involved; and those who witnessed Kelly

Samaniego implicate herself in the crime and admit to trying to frame him.

See supra ¶¶ 158–62.

171. Against this alibi, the prosecution’s case was remarkably weak,

consisting of testimony by (1) Tafolla, whose memory and perception due to

her injuries, emotional trauma, drug use, and surrounding conditions were

“severely compromised,” and liable to confuse faces and confabulate details

(see Ex.:25:132–33); (2) Kelly, who had lied to police from the beginning,

who had a motive to pin the attack on Godine, whose testimony was so

unreliable that the prosecution had to impeach her; and who was herself

implicated in covering up the crime, see supra ¶¶ 145–49; (3) Monique, who

testified twice under oath that she never saw Godine, despite what

Guerrero claimed, see supra ¶¶ 150–52; and Guerrero himself, who took no

notes during or after interviews (RT 1020), recorded no interviews (RT

1019), backdated (inadvertently or not) one of his reports, see supra ¶ 68,

copied the contents of one eyewitness identification of Godine into another,

see supra ¶ 86, repeatedly “refreshed” his memory at trial by looking at

reports he’d read earlier the same day while testifying to new “facts”

nowhere mentioned in those reports, see infra ¶ 197, and misleadingly

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presented eyewitness testimony identifying Godine without noting that the

photo those identifications were based on lacked the most salient

characteristic used previously by all three identifying witnesses to describe

the third suspect: a red “M” tattoo on his neck. See infra ¶¶ 231–33.

172. Weighing Godine’s airtight alibi against the prosecution’s dubious

evidence, “it is more likely than not that no reasonable juror” would have

found every essential fact alleged against him. Perkins, 569 U.S. at 390.

CLAIMS FOR RELIEF

A. Ground One: Trial counsel was constitutionally ineffective.

173. Godine was constitutionally entitled under the Sixth and

Fourteenth Amendments to be assisted by an attorney at trial. Strickland

v. Washington, 466 U.S. 668, 685 (1984). The right to the assistance of

counsel is the right to the effective assistance of counsel. Id. at 686.

Strickland is “clearly established Federal law, as determined by the

Supreme Court[.]” Williams v. Taylor, 529 U.S. 362, 391 (2000).

174. Godine’s Sixth Amendment rights were violated under Strickland

because (1) Uhalley’s performance was deficient, and (2) the deficiency

prejudiced Godine’s defense. Wiggins v. Smith, 539 U.S. 510, 521 (2003).

175. Uhalley’s performance was “deficient” as outlined below because it

fell below an objective standard of reasonableness under prevailing

professional norms. Strickland, 466 U.S. at 693–94.

176. Uhalley’s deficient performance “prejudiced” Godine as outlined

below because there is a reasonable probability that but for Uhalley’s

failings the result would have been more favorable, id. at 687–96—in other

words, that “at least one juror would have harbored a reasonable doubt”

about at least one essential fact. Buck v. Davis, ___ U.S. ___, 137 S. Ct. 759,

776 (2017).

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1. Uhalley unreasonably failed to consult with an expert on

memory.

177. “Criminal cases will arise where the only reasonable and available

defense strategy requires consultation with experts or introduction of

expert evidence.” Hinton v. Alabama, ___ U.S. ___, 134 S. Ct. 1081, 1088

(2014) (per curiam). This is one of them.

178. Here there were at least two factors that called out for consultation:

(1) The Tafolla’s extended use of meth; and (2) the concussion or

concussions she had suffered, which resulted in manifest and profound

memory impairment.

179. Consultation with an expert would have established several points

directly relevant to the factors jurors were instructed to consider. (See RT

1530–32.)

180. To start with, an expert would have explained in psychological

terms (1) the effect of Tafolla’s physical condition, both before the attack

and after her injuries, (2) the opportunity she had to observe what she was

asked to describe; (3) the sources of potential distortion in her memory of

the events and her attackers; and (4) the effect of Guerrero’s identification

procedures on her identification. (See Ex. 25:108.) It would have also

disabused jurors of the common but mistaken idea that fear leads to more

reliable memory, when quite the opposite is true. (See id. at 115.)

181. The jury would have learned how these factors played out and may

have compromised Tafolla’s ability to remember accurately events at each

of three stages of memory—encoding, consolidation and storage, and

retrieval. (See Ex. 27:112–13.)

182. Through this analysis, assisted by the expert’s testimony and based

on factors “sufficiently beyond common experience,” People v. McDonald, 37

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Cal. 3d 351, 369 (1984), the jury would have learned that Tafolla’s memory

and identification were unreliable. (See Ex. 25:131–33.)

183. Uhalley’s reasons for forgoing an expert—that the trial judge would

never approve it, and that Crovetti’s photos “were better than any expert”

(Ex. 26 ¶ 88)—were unreasonable. California courts have permitted

eyewitness identification experts to testify on far more general grounds

than those here. See People v. Caldwell, 212 Cal. App. 4th 1262, 1268

(2013) (noting expert’s opinion testimony that “most people believe that a

suspect is in a photo lineup, and may select a person in the lineup who is

not, in fact, the assailant”). And such testimony could have reinforced the

problems posed by Crovetti’s photos.

184. In sum, “Given the trauma [Tafolla] endured” and the profound

memory impairment it caused, “[her] memory was highly vulnerable to

attack by scientific evidence.” Bell v. Miller, 500 F.3d 149, 155 (2d Cir.

2007). Yet Uhalley failed even to explore the question. This was plainly

deficient, and prejudiced Godine’s defense by lending Tafolla’s testimony far

more credence than it was entitled to, and which at least one juror, given

expert guidance, could well have reasonably doubted.

2. Uhalley unreasonably failed to get Tafolla’s medical

records.

185. Uhalley also failed to get Tafolla’s medical records. This was

unreasonable, both because it those records were necessary for an adequate

assessment of Tafolla’s memory (see Ex. 25:120 (noting value of tox screen

results)), and because it would have provided a check on Tafolla’s testimony

on whether she was only a “little” high (RT 389).

3. Uhalley inadequately cross-examined Tafolla.

186. Uhalley also failed to adequately cross-examine Tafolla, in at least

three ways.

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187. First, Tafolla had at first described some who’d been at the party

with a red “M” tattoo. (RT 713; Ex. 12:75.) She gave this feature as an

identifier consistently in her statements.

188. Yet she’d never mentioned the fact that in the photo she was shown

to identify “suspect 3,” Godine—aside from having different hair and

wearing different clothes than she described—lacked the tattoo. And

Uhalley failed to draw the jury’s attention to the point.

189. He thus not only failed to exploit a major reliability problem with

Tafolla’s identification; he also missed an opportunity to establish reliable

evidence that from the earliest point of the trial would supported a key

pillar of Uhalley’s defense strategy: Godine had no tattoo at the time of the

party.

190. Second, and worse, he contributed to and cemented Tafolla’s false

recollection of having described Godine as the man with the tattoo (see RT

409–10), rather than a generic “black male” or the like, with no mention of

the fact that this was the first time she had ever done so. He thus induced

Tafolla to conflate Godine with someone else—to “confuse why [his] face

seem[ed] familiar” (Ex.25:132)—and perhaps with the person Uhalley was

pointing to as the real culprit.

191. Third, Uhalley did not pursue questioning about the lighting, the

distance, duration, angle of view, and so on needed to assess Tafolla’s

ability to even see the postulated second man, not to say accurately identify

and remember him. Worse, he failed to adequately exploit in closing

argument the conditions that her testimony already made clear: Her vision

was “blurry” and dreamlike. (RT 367.) Her focus was on Trejo. (RT 420.)

Godine was standing, inert, at an obtuse or even reflex angle from her line

of sight to Trejo (RT 420), making it highly implausible that he would have

drawn her notice or that she could have made his face out under even ideal

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conditions. Again, the importance of these and other factors would have

been brought home to Uhalley had he consulted with an expert. (See Ex.

25:108, 113 (noting importance of such factors in analysis of reliability and

memory).)

4. Uhalley inadequately cross-examined Guerrero.

192. Uhalley’s cross-examination of Guerrero was also deficient, in

several key respects.

193. First, he failed to bring up the fact that Guerrero’s sixpack used a

photo of Godine that showed him tattooless (see Ex. 17:96); that none of the

witnesses noted this fact when they supposedly identified Godine from the

photo; and that Guerrero didn’t either. He also failed to bring out the fact

that the photo was taken after the party. (Compare id. with Ex. 23:104.)

194. Here again, Uhalley squandered a golden opportunity to establish,

during the prosecution’s case, both that all three identifications of Godine

were unreliable, and that there was evidence he had no tattoo when he was

at the party—and all of this while revealing to the jury that the prosecution

had kept this vital evidence from the jury.

195. Second, Uhalley failed to question Guerrero about whether he had

any experience or training on how to question people who have suffered

head trauma and exhibit memory impairment, or use the fact that Guerrero

had failed to find out how she’d been medicated. (CT 174.) Given that his

interviews with Tafolla were at best unduly suggestive (see Ex. 25:132), any

answer Guerrero could have given would have undercut his credibility:

Either he did have that experience and training, in which case he was

flouting it; or he didn’t, in which case he was incompetent to conduct the

questioning.

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196. Third, while counsel for another defendant made some use of

Guerrero’s failure to record or take contemporaneous notes when he

interviewed people in the field, he didn’t go nearly far enough in showing

how this affected the accuracy of the written reports Guerrero prepared

days or weeks (or months?) later.

197. For example, when asked by Ramos’s counsel about whether it was

important to take notes in a case like this, Guerrero said “Not necessarily.”

But that was a dodge: Guerrero failed to take notes of even a single

interview (see RT 1020)—in a case rife with confusing monikers and

conflicting accounts, by drug-and-alcohol-addled witnesses, with possible

gang-related axes to grind (see RT 1562), some continuing to change their

stories.

198. It wasn’t like Guerrero had exceptional powers of memory, either.

(See RT 947–48, 953–54, 955–56, 971–72, 977–78, 987, 989, 1004

(refreshing recollection through reports); RT 1020–21 (noting he’d reviewed

report same day before testifying). See also RT 1025 (memory “refreshed” by

witness testimony).) So if he took contemporaneous notes in any cases at

all, this should have been one of them. And Uhalley should have driven the

point home in his own cross, if not in argument.

199. Uhalley also ignored the clear disconnect between the date on

Guerrero’s report (see Ex. 14:86 (dated September 8, 2008)) and the dates of

the investigative activity he described in it, all of which came more than a

week after the nominal date of the report (see generally id. at 86–89)

(covering activity from September 16 through October 21). Uhalley could

have exploited this defect to show that Guerrero’s practice in generating

reports made it impossible for him to verify when it was he began and

finalized them, or whether, when, and how they might have been modified

in the interim.

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5. Uhalley conducted ineffective direct examination of

Crovetti.

200. Uhalley also called Crovetti to discuss photos he’d taken of Godine,

to prove that Godine did not have a tattoo at the time. But he did so in a

way that seemed almost designed to emphasize that there were other parole

photos that unlike the photos had sought were specifically designed to

memorialize scars, tattoos, or any other distinctive identifiers. (See RT

1214.) And indeed Crovetti answered that he did “believe there [we]re other

tattoo photos in [Godine’s] file.” (RT 1214.) Given that Uhalley knew about

such photos, he should have requested them.

201. Instead, he made what appeared a partial presentation of evidence,

which left open the possibility that the defense was eliding the best

evidence of whether Godine had a tattoo, selectively showing them photos

that supported its case while suppressing others. It also gave the

prosecution a line of argument that if the prosecution had only known about

the photos the defense was going to bring in, the prosecution might have

brought the I.D. photos in—a line the prosecution used. (RT 1618.) At

bottom, then, Uhalley’s approach at best neutralized any possible benefit

from Crovetti’s testimony.

6. Uhalley failed to call a witness who he knew could testify

that “Brim” was Kelly’s boyfriend.

202. In early July 2009, still before trial, Mendoza interviewed Mark

Erickson. Erickson had known Godine since sixth grade. He did not know

Godine as “Brim.” But he did know that Kelly had said she had a boyfriend

named “Brim.” (Ex. 20:101.)

203. But Uhalley never called Erickson. Failing to do so was deficient

performance that prejudiced Godine, in two main ways.

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204. First, the omission squandered an opportunity to prove three

important facts: that Godine didn’t go by “Brim”; that someone else did; and

that Kelly was lying about it by claiming she didn’t have a boyfriend named

“Brim.” (RT 491, 505.) This was a critical oversight, because the only

witnesses who came up with the name “Brim” to describe the black male

suspect were Kelly and Monique—who already lacked credibility, and so

were vulnerable to the impeachment. (CT 110, 111.)

205. And second, it wasted an opportunity to prove a complete alibi for

Godine at trial. For as Erickson would himself volunteer years later, he was

at the party, had helped another man carry a severely drunk Godine to his

car, had watched Godine driven away, and had later heard Kelly make

statements that incriminated her in the beating and abduction. (See Ex.

6:45, 46.)

7. Uhalley ineffectively crossed the sheriff’s deputy.

At trial, one of the sheriff’s deputies testified that in Tafolla’s initial

interview she’d said she believed that she heard a third, male voice in the

car while she was in the trunk. (RT 715.) But in the deputy’s report of the

interview, there’s no mention of any third person at all. (See Ex. 12:73–78.)

Uhalley failed to point this out to the jury on cross, and allowed the deputy

to suggest that though Tafolla had said she hadn’t seen anyone else, she

had “heard them.” (RT 729.)

This was deficient performance that prejudiced Godine, for two main

reasons. First, it allowed the jury conclude, falsely, that the information

had been contemporaneously noted by the deputy in his report. And second,

it allowed the jury to conclude, falsely, that Tafolla had made mention of a

second male in the car at that first interview. Together, these factors lent

both witnesses credibility, without which jurors would have been more

likely to question the very existence of a second male suspect in the car.

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8. Uhalley unreasonably failed to request Pitchess materials

206. Uhalley failed to request Pitchess materials—information in the

confidential personnel file of a peace or custodial officer that may contain

evidence relevant to the defense. See Pitchess v Superior Court, 11 Cal.3d

531 (1974). The threshold showing to get this information is “relatively

relaxed,” and meant to ensure the production of “all potentially relevant

documents.” Warrick v. Superior Court, 35 Cal. 4th 1011, 1016 (2005). To

meet it, a defendant need only present a scenario of officer misconduct that

is “plausible” given the pertinent documents. Id. at 1025. Pitchess materials

can be requested post-conviction. Hurd v. Superior Court, 144 Cal. App. 4th

1100, 1107 (2006).

207. Here, Uhalley had at least two witnesses who would have provided

cause for the motion. First, Godine himself told Uhalley that Guerrero had

tried to pressure him into signing a false statement, with threats of using

false statements and false information him against him. See supra ¶¶ 99–

101, 107–14. And second, after trial, Manisha Aday informed Mendoza that

Guerrero had pressured her not to testify for the defense. (See Ex. 24:105.)

208. Either statement alone would have provided good cause. And given

Guerrero’s conduct, there is a reasonable probability that the Pitchess

motion would have revealed impeachment material. While Aday’s

information couldn’t have helped at trial, it would have given Godine a leg

up in the motion for a new trial that Uhalley filed based solely on the

declaration of Dustin Fabre. (See CT 519–25.)

9. Uhalley unreasonably failed to request other discovery.

209. Counsel’s duty to make reasonable investigations encompasses a

duty to investigate the prosecution’s case through adequate discovery. See

Kimmelman v. Morrison, 477 U.S. 365, 385 (1986) (holding that trial

counsel was ineffective because his strategy was based on mistaken belief

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that prosecutor needed to provide discovery absent defense request); Turner

v. Duncan, 158 F.3d 449, 456 (9th Cir. 1998).

210. Here, Uhalley should have known that to determine whether

Guerrero’s account of how his reports had been generated (see RT 1047),

and whether, when, and how they’d been revised and finalized, Uhalley had

to get more information about the station’s reporting system, and perhaps

even inspect the underlying metadata. See, e.g., Rodriguez v. City of Fresno,

No. CV 05-1017, 2006 WL 903675, at *3–4 (E.D. Cal. Apr. 7, 2006)

(unreported) (ordering, in civil rights case, that defendants produce police-

report metadata relevant to proving allegation that reports had been

falsified).

211. Uhalley also failed to request footage from the 7-Eleven where

Tafolla claimed he’d accompanied her on their beer run. Based on

Guerrero’s statements to Godine in the jailhouse interview room, see supra

¶ 112, this footage would have shown that Godine was not there. This

would have undermined Tafolla’s recollection of events generally and her

ability to identify Godine.

212. While the metadata and video might not have been formally

discoverable under California law, voluntary discovery more extensive than

required by statute is permitted and encouraged as a matter of practice. See

Cal. Penal Code § 1054.5(b) (requiring “informal request” for desired

materials and information before formal discovery). And any nondisclosure

by the prosecution or law enforcement to provide the items requested could

have been used on cross to undermine the credibility of Guerrero’s reports.

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10. Uhalley inadequately discussed with Godine the actual

costs and benefits of testifying, and failed to inform him

that whether to testify was his decision.

213. Uhalley also failed to adequately discuss with Godine his right to

testify—a right “essential to due process of law in a fair adversary process,”

Rock v. Arkansas, 483 U.S. 44, 51 (1987), whose exercise it is within the

defendant’s ultimate authority to choose, Jones v. Barnes, 463 U.S. 745, 751

(1983).

214. Uhalley told Godine that he didn’t think it was a good idea for

Godine to testify because it would open the door for the prosecution to have

Guerrero testify about his version of what happened during their jailhouse

interviews. (Ex. 26 ¶ 87.)

215. But, Uhalley failed to adequately discuss with Godine the costs and

benefits of testifying. (See id.) He also failed to inform Godine that whether

to testify was ultimately his decision to make. (Id.) And even if they’d had

an adequately focused discussion about the topic, Uhalley’s other omissions

ineluctably would have distorted the picture.

216. The upshot was two-fold: (1) Godine was unable to make an

“informed decision about whether to testify in his own defense,” Casiano-

Jimenez v. United States, 817 F.3d 816, 821 (1st Cir. 2016); and (2) Uhalley

wound up putting on a defense that did not conform to Godine’s informed

choice about a fundamental trial decision, and that on balance was probably

the worse for it.

11. Uhalley failure to adequately investigate and present

Barthlett’s alibi evidence.

217. Uhalley also failed to make reasonable attempts to find Barthlett.

This was also deficient performance. See Thomas v. Chappell, 678 F.3d

1086, 1103–05 (9th Cir. 2012) (holding that counsel was constitutionally

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ineffective for failing to investigate alibi adequately, even if reasonable

investigation would have discovered only three of eleven witnesses

petitioner claimed it should have).

218. Godine told both Uhalley and Mendoza about Barthlett.

219. Yet Uhalley and Mendoza took no steps to try to find her or contact

her. Though Godine had only identified her by “Leanna,” his mother had

given them phone and text records. (See Ex. 27 ¶¶ 10–11.) That should have

been enough for a reasonable investigator, with subpoena power, to track

her down and talk to her. See Thomas, supra. And had they tracked her

down at the time, they could have used her phone records and perhaps the

testimony of other witnesses to corroborate her own testimony.

220. The prejudice is plain: Barthlett was a critical witness—the only

witness who could corroborate every aspect of Godine’s alibi. Given how

weak the prosecution’s case was, there is a reasonable probability that her

testimony would have left at least one juror with reasonable doubt about

the prosecution’s case.

12. Uhalley failed to interview or reasonably investigate

other witnesses

221. Uhalley also unreasonably failed to interview or investigate other

witnesses.

222. To begin with, Uhalley made no attempt to find Michael “Brim”

Williams or talk to him. (See Ex. 27 ¶ 6.) And at the very least, reasonable

investigation “would have corroborated [Williams’s] existence and

description.” Thomas v. Chappell, 678 F.3d 1086, 1099 (9th Cir. 2012). The

lapse prejudiced the defense because Uhalley had adopted the theory that

Williams, not Godine, was the real “Brim”; without independent

corroboration, all Uhalley had to go on was testimony by Ramos (RT 1349),

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whose statement was more easily discounted by the jury because she was

allegedly in cahoots with Godine and Trejo.

223. But Uhalley also made no attempt to interview or attempt to

contact any of the main prosecution witnesses in the case. Not Tafolla. Or

Kelly. Or Monique. Or Guerrero. (Ex. 27 ¶ 6.) This was deficient

performance. See Harris By & Through Ramseyer v. Wood, 64 F.3d 1432,

1435 (9th Cir. 1995) (holding that trial counsel was constitutionally

ineffective where, among other things, he “interviewed only three of the 32

persons in the police reports”). See also Stanley v. Bartley, 465 F.3d 810,

812 (7th Cir. 2006) (counsel “prepared for the trial by reading the

statements that prospective witnesses had given the police … [but] did not

interview any of them”).

224. The prejudice from forgoing an interview with Tafolla is clear

enough from paragraphs 186 through 190 above. With Guerrero, Uhalley

could have learned more about how and when Guerrero’s reports were

“finalized.” This is information he would have needed to assess how long

after the nominal dates of the reports Guerrero would have been able to

alter their contents—a possibility Godine’s statements gave him cause to

investigate. Uhalley also could have learned more about Guerrero’s

anonymous tipster, whom Guerrero had referred to in his report as “he/she”

(Ex. 15:90), and about what efforts Guerrero had made to identify him or

her. And as for Kelly and Monique, it’s hard to imagine interviewing them

wouldn’t have provided more grist for cross, even if (or maybe even

particularly if) they refused to be interviewed by the defense team.

225. Finally, there is no indication that Uhalley or Mendoza tried to

contact several other potential witnesses whose names they knew about—

including Ramos, Mark Samaniego, Charles Mitchell, Carlos Rodriguez,

“A.J.” Ward, Kiana Mitchell, Margarita Taylor, Rosetta Jarmine, or Mchale

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Stacy. (See Ex. 26 ¶ 6; Ex. 27 ¶ 6.). This lapse was prejudicial because at

least some of these witnesses could have corroborated that Godine had been

partying it up earlier in the day, that he had gotten quite drunk, and that

he’d had no interactions with Trejo. Just this much would have made

Kelly’s version of events even less credible.

13. Uhalley unreasonably failed to move to reopen after the

prosecutor’s improper argument.

226. Uhalley also failed to move to reopen argument to respond to the

prosecutor’s false or misleading statements about the parole photo. See

generally infra Parts V.B & C. This would have been in the trial court’s

sound discretion. See People v. Richardson, 192 Cal. App. 2d 166, 169 (1961)

(affirming trial court’s allowing prosecution to reopen to impeach defense

witness’s testimony).

227. Uhalley’s failure was unreasonable, and prejudiced Godine by

failing to bat back the prosecutor’s false or misleading statement about the

photo. See Poindexter v. Booker, 301 F. App’x 522 (6th Cir. Nov. 24, 2008)

(holding that counsel was ineffective in failing to exercise option under

state law to reopen testimony when additional defense witnesses arrived in

court during closing). Indeed, the prosecutor’s statement may have been the

linchpin of the jury’s decision to find Godine guilty, since it provided the

only colorable basis for supposing that there were other photographs out

there that would have shown that Godine had a tattoo at the time of the

party—and that the prosecutor could be excused for failing to produce them

at trial.

14. Taken together, these unprofessional errors prejudiced

Godine.

228. Given the cumulative effect of these unprofessional errors, see

Sanders v. Ryder, 342 F.3d 991, 1001 (9th Cir. 2003), it’s reasonably likely

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that “at least one juror would have harbored a reasonable doubt” about an

essential fact. Buck, 137 S. Ct. at 776.

B. Ground Two: The prosecution violated due process by using

or failing to correct false evidence.

229. The prosecution violated due process by having Guerrero give false

evidence or by failing to correct it. Napue v. People of State of Ill., 360 U.S.

264, 269 (1959).

230. To prove this Napue claim, Godine must show that (1) the

testimony (or evidence) was “actually false,” (2) the prosecution “knew or

should have known” that the testimony was actually false, and (3) the false

testimony was “material.” Reis-Campos v. Biter, 832 F.3d 968, 976 (9th Cir.

2016), cert. denied, 137 S. Ct. 1447 (2017). The Napue materiality standard

is less demanding than that under Brady v. Maryland, 373 U.S. 83 (1963).

Under Napue, a conviction must be set aside “whenever there is ‘any

reasonable likelihood that the false testimony could have affected the

judgment of the jury.’ ” Reis-Campos, supra.

231. Guerrero’s testimony was false because he represented to the jury

that he had secured three clean identifications of Godine based on a photo

never shown to the jury, with no mention that the photo showed that

Godine lacked the most salient identifier in the witnesses’ previous

descriptions—the “M” tattoo. (See Ex. 18:97.)

232. The prosecutor knew or should have known that this context was

misleading because he had seen the same evidence that Guerrero had, and

could not have reasonably ignored the relevance of the missing tattoo and

the date of the photo, information which would have been readily available.

233. Moreover, far from correcting Guerrero’s misleading testimony, the

prosecutor compounded the deception, by asserting that he himself was

unaware that Uhalley was going to use the parole photos—which contained

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the photo of Godine Guerrero had used in his sixpack (Compare id. with Ex.

23:104.)—and that if he had known Uhalley’s plan, he “might have used

parole to bring [Godine’s] file of the observable oddities.” (RT 1618.) This

gave the jury the false impression both that the prosecution was unware of

the very parole photo Guerrero had used in his serial line-ups, and that the

defense itself might have been keeping evidence from the prosecution and

from the jury.

234. The misleading testimony and the prosecutor’s failure to correct it

were material because they made the identification by Tafolla seem more

reliable than it was, and lent spurious corroboration to her earlier

descriptions by making it seem that they matched Godine as he was

depicted in the photo.

C. Ground Three: The prosecution violated due process by

engaging in misleading argument.

235. As pleaded above in paragraphs 231 through 233 and realleged

here, the prosecutor’s closing argument mislead the jury about the parole

photos that Uhalley used to prove that Godine had no tattoo at the time of

the party. This was an independent violation of due process under Darden

v. Wainwright, 477 U.S. 168 (1986). The prosecutor’s “misleading …

argument[]” denied Godine due process because it “ ‘so infected [Godine’s]

trial with unfairness as to make [his] conviction a denial of due process.’ ”

Deck v. Jenkins, 814 F.3d 954, 977–78 (9th Cir. 2016) (quoting Darden, 477

U.S. at 181).

236. Godine denies that Darden claims require a separate showing of

“actual prejudice” under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

See generally Jackson v. Brown, 513 F.3d 1057, 1070 (9th Cir. 2008)

(stating that for claims “analyzed under their own harmless error

standards,” separate Brecht analysis may be “unnecessary”). But see Deck,

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EXHIBIT LIST

Exhibits in Support of

Amended Petition for Writ of Habeas Corpus

Exhibit

No.

Description

Bates

No.

Brown Investigations Report, July 20, 2016

1-6

Declaration of Casey Carter, March 26, 2013

7-10

Affidavit of Chantall Marie Barthlett,

April 12, 2013

11-17

Affidavit of Rayna Craddock, June 3, 2013

18-28

Affidavit of Claudia Montes, March 4, 2013,

and Letter, November 1, 2012

29-44

Affidavit of Markus Erickson, June 12, 2012

45-51

Affidavit of Robin Storey, December 26, 2012

52-55

Declaration of Leticia Aguilar

56-57

Affidavit of Eunita Robinson, August 4, 2013

58-59

Affidavit of Danielle Toro, November 12, 2015

Phone records (partial) for Carolyn

Richardson, 626-251-6009

61-68

Los Angeles County Sheriff’s Dept. Incident

Report, August 31, 2008

69-78

Los Angeles Sheriff’s Dept. Supplementary

Report, September 8, 2008

79-85

Los Angeles Sheriff’s Dept. Supplementary

Report, September 8, 2008

86-89

Los Angeles Sheriff’s Dept. Supplementary

Report, November 3, 2008

90-92

76a

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#:3274

(;+,%,7

77a

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#:3275

Case 2:16-cv-02534-ODW-AJW Document 1-2 Filed 04/13/16 Page 4 of 12 Page ID #:79

([KLELW

78a

Case 2:16-cv-02534-ODW-KS Document 46-3 Filed 08/28/18 Page 12 of 72 Page ID

#:3276

Case 2:16-cv-02534-ODW-AJW Document 1-2 Filed 04/13/16 Page 5 of 12 Page ID #:80

([KLELW

79a

Case 2:16-cv-02534-ODW-KS Document 46-3 Filed 08/28/18 Page 15 of 72 Page ID

#:3279

(;+,%,7

80a

Case 2:16-cv-02534-ODW-KS Document 46-3 Filed 08/28/18 Page 16 of 72 Page ID

#:3280

Case 2:16-cv-02534-ODW-AJW Document 1-2 Filed 04/13/16 Page 9 of 12 Page ID #:84

([KLELW

81a

Case 2:16-cv-02534-ODW-KS Document 46-3 Filed 08/28/18 Page 17 of 72 Page ID

#:3281

Case 2:16-cv-02534-ODW-AJW Document 1-2 Filed 04/13/16 Page 10 of 12 Page ID #:85

([KLELW

82a

Case 2:16-cv-02534-ODW-KS Document 46-3 Filed 08/28/18 Page 18 of 72 Page ID

#:3282

Case 2:16-cv-02534-ODW-AJW Document 1-2 Filed 04/13/16 Page 11 of 12 Page ID #:86

([KLELW

83a

Case 2:16-cv-02534-ODW-KS Document 46-3 Filed 08/28/18 Page 19 of 72 Page ID

#:3283

Case 2:16-cv-02534-ODW-AJW Document 1-2 Filed 04/13/16 Page 12 of 12 Page ID #:87

([KLELW

84a

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#:3284

Case 2:16-cv-02534-ODW-AJW Document 1-3 Filed 04/13/16 Page 1 of 13 Page ID #:88

([KLELW

85a

Case 2:16-cv-02534-ODW-KS Document 46-3 Filed 08/28/18 Page 21 of 72 Page ID

#:3285

Case 2:16-cv-02534-ODW-AJW Document 1-3 Filed 04/13/16 Page 2 of 13 Page ID #:89

([KLELW

86a

Case 2:16-cv-02534-ODW-KS Document 46-3 Filed 08/28/18 Page 22 of 72 Page ID

#:3286

Case 2:16-cv-02534-ODW-AJW Document 1-3 Filed 04/13/16 Page 3 of 13 Page ID #:90

([KLELW

87a

Case 2:16-cv-02534-ODW-KS Document 46-3 Filed 08/28/18 Page 23 of 72 Page ID

#:3287

(;+,%,7

88a

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#:3288

Case 2:16-cv-02534-ODW-AJW Document 1-3 Filed 04/13/16 Page 5 of 13 Page ID #:92

([KLELW

89a

Case 2:16-cv-02534-ODW-KS Document 46-3 Filed 08/28/18 Page 25 of 72 Page ID

#:3289

Case 2:16-cv-02534-ODW-AJW Document 1-3 Filed 04/13/16 Page 6 of 13 Page ID #:93

([KLELW

90a

Case 2:16-cv-02534-ODW-KS Document 46-3 Filed 08/28/18 Page 26 of 72 Page ID

#:3290

Case 2:16-cv-02534-ODW-AJW Document 1-3 Filed 04/13/16 Page 7 of 13 Page ID #:94

([KLELW

91a

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