Petition for Writ of Certiorari — Paul J. Hultman, Petitioner v. Daniel Paramo, Warden

Supreme Court briefNov 15, 2021

Ask Donna

What actually matters in this document.

Text

'i'i

FILED

UNITED STATES COURT OF APPEALS

SEP 15 2021

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U S. COURT OF APPEALS

PAUL J. HULTMAN,

Petitioner-Appellant,

DANIEL PARAMO, Warden,

No.

20-55792

D.C. No. 5:18-cv-01439-CJC-LAL

Central District of California,

Riverside

ORDER

Respondent-Appellee.

Before:

WARDLAW and BADE, Circuit Judges.

Appellant’s motion for reconsideration (Docket Entry No. 9) is denied. See

9th Cir. R. 27-10.

No further filings will be entertained in this closed case.

N •-;G>

FILED

UNITED STATES COURT OF APPEALS

JUL22 2021

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No.

PAUL J. HULTMAN,

20-55792

D.C. No. 5:18-cv-01439-CJC-LAL

Central District of California,

Riverside

Petitioner-Appellant,

ORDER

DANIEL PARAMO, Warden,

Respondent-Appel lee.

Before:

CANBY and TALLMAN, Circuit Judges.

Appellant’s motion to file an oversized request for certificate of

appealability (Docket Entry No. 5) is granted.

The request for a certificate of appealability (Docket Entry Nos. 2 & 3) 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); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

Any pending motions are denied as moot.

DENIED.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. EDCV 18-1439-CJC (LAL)

PAUL J. HULTMAN.

Petitioner,

ORDER DENYING CERTIFICATE OF

APPEALABILITY

DANIEL PARAMO, Warden,

Respondent.

For the reasons stated in the Report and Recommendation, the Court finds that Petitioner

has not made a substantial showing of the denial of a constitutional right.1 Thus, the Court

declines to issue a certificate of appealability.

DATED: March 30, 2020

• Cr

HONORABLE CORMAC CARNEY

UNITED STATES DISTRICT JUDGE

1 See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. Cockrell. 537 U.S. 322, 336,123 S. Ct. 1029, 154 L. Ed.

2d 931 (2003).

JS-6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. EDCV 18-1439-CJC (LAL)

PAUL J. HULTMAN,

Petitioner,

JUDGMENT

DANIEL PARAMO, Warden,

Respondent.

Pursuant to the Order Accepting Report and Recommendation of United States

Magistrate Judge,

IT IS ADJUDGED that the First Amended Petition is denied and this action is dismissed

with prejudice.

DATED: March 30, 2020

HONORABLE CORMAC J. CARNEY

UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. EDCV 18-1439-CJC (LAL)

PAUL J. HULTMAN,

Petitioner,

ORDER ACCEPTING REPORT AND

RECOMMENDATION OF UNITED

STATES MAGISTRATE JUDGE

DANIEL PARAMO, Warden,

Respondent.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition, the

Magistrate Judge’s Report and Recommendation, Petitioner’s Objections and the remaining

record, and has made a de novo determination.

Petitioner’s Objections lack merit for the reasons stated in the Report and

Recommendation.

Accordingly, IT IS ORDERED THAT:

The Report and Recommendation is approved and accepted;

Judgment be entered denying the First Amended Petition and dismissing this

action with prejudice; and

III

The Clerk serve copies of this Order on the parties.

DATED: March 30, 2020

HONORABLE CORMAC/ CARNEY

UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. EDCV 18-1439-CJC (LAL)

PAUL J. HULTMAN,

Petitioner,

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

DANIEL PARAMO, Warden,

Respondent.

This Report and Recommendation is submitted to the Honorable Cormac J. Carney,

United States District Judge, under the provisions of 28 U.S.C. § 636 and General Order 194 of

the United States District Court for the Central District of California.

PROCEEDINGS

On July 6, 2018, Paul J. Hultman (“Petitioner”) filed a Petition for Writ of Habeas

Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254, followed by a First Amended

Petition (“FAP”) on October 9, 2018. On November 19, 2018, Respondent filed a Motion to

Dismiss the First Amended Petition. On February 26, 2019, the previously assigned magistrate

judge issued a Report and Recommendation that all but one of Petitioner’s claims be dismissed.

On May 13, 2019, the Court accepted the Report and Recommendation and ordered the FAP

proceed on the single viable claim. On June 6, 2019, Respondent filed an Answer addressing

Petitioner’s single remaining claim. On July 10, 2019, Petitioner filed a Reply to the Answer.

Thus, this matter is ready for decision.

II.

PROCEDURAL HISTORY

On April 17,2014, Petitioner was convicted after a jury trial in the San Bernardino

County Superior Court of one count of continuous sexual abuse,1 two counts of committing a

lewd act on a child under the age of 14,2 and one count of committing a lewd act on a child

under the age of 14 or 15 when the defendant is at least ten years older than the victim.3 The

jury also found true allegations that Petitioner committed his offenses against more than one

person.4 (Volume 2 Clerk’s Transcript (“CT”) at 214-15, 217-18, 220-22, 237-38.) On

November 21, 2014, the trial court sentenced Petitioner to a state prison term of 45 years to life.

(2 CT at 310-14.)

Petitioner appealed his convictions to the California Court of Appeal. (Lodgments 1-3.)

On March 15, 2016, the California Court of Appeal affirmed the judgment. (Lodgment 4.)

Petitioner then filed a petition for review in the California Supreme Court. (Lodgment 5.)

On May 18, 2016, the California Supreme Court denied review. (Lodgment 6.)

Petitioner next filed a habeas corpus petition in the San Bernardino County Superior

Court. (Lodgments 7, 7a, 8.) On January 2, 2018, the superior court denied the petition.

(Lodgment 9.)

Next, Petitioner filed a habeas corpus petition in the California Court of Appeal.

(Lodgments 10,10a.) On March 14, 2018, the appellate court denied the petition. (Lodgment

11.)

l Cal. Penal Code § 288.5(a).

2 Cal. Veh. Code § 288(a).

3 Cal. Veh. Code § 288(c)(1).

4 Cal. Veh. Code § 667.61 (b)(e)(4).

Finally, Petitioner filed a habeas corpus petition in the California Supreme Court.

(Lodgments 12, 12a.) On August 29, 2018, the California Supreme Court denied relief.

(Lodgment 13.)

SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL

This Court has independently reviewed the state court record. Based on this review, this

Court adopts the factual discussion of the California Court of Appeal’s opinion in this case as a

fair and accurate summary of the evidence presented at trial:5

At trial, the jury heard evidence that Eric G. and his wife moved into the

defendant's neighborhood in January 2009. Eric’s daughter, Shyann, and son,

Dylan, had friends who lived on the same street as Hultman. Hultman befriended

Shyann and Dylan. He repaired their bicycles and paid them for doing yard work.

He bought toys and food for them, and took them to the pool and the store.

Eric was uncomfortable about Hultman’s relationship with his children,

and became more concerned after Hultman gave Shyann a cell phone. In

approximately February 2013, Eric told Hultman to stay away from his children.

He instructed his children not to go to Hultman’s house. Eric testified that

Shyann was acting “funny.” She was withdrawn and secretive. In June, his son

Dylan told him that he and Shyann were still seeing Hultman and that Hultman

had given Shyann another cell phone and told her to hide it. Hultman was

meeting them in a park. Dylan also told Eric that he and Shyann had watched

pornography with Hultman. In June, Shyann told Eric’s girlfriend, Michelle, that

Hultman had said, “let me show you how to suck my dick,” and that he would

whisper “oh, beautiful[,] good girl” as she engaged in the act. Eric and Michelle

5 “Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.

...” Miller-El v. Cockrell. 537 U.S. 322, 340,123 S. Ct. 1029,154 L. Ed. 2d 931 (2003) (citing 28 U.S.C.

§ 2254(e)(1)). Thus, Ninth Circuit cases have presumed correct the factual summary set forth in an opinion of the

state appellate court under 28 U.S.C. §2254(e)(l). See, e.g.. Moses v. Pavne. 555 F.3d 742, 746 n.l (9th Cir. 2009)

(citations omitted).

went to Hultman’s home to confront him. When Hultman fled, they contacted the

police.

At the time of the trial, Shyann was 13 years old. Shyann testified that

she did not remember what happened the first time she performed oral sex on

Hultman. After reviewing her initial statement to the police, Shyann said that

Hultman asked her to go to his room. He pushed her by her shoulder and said that

he had been doing kind things for her and buying her things, and that she had to

do something nice for him. He undid the button on his pajama pants. His penis

was hard. Shyann said that Kylie and Chelsea had told her that he had made them

suck his penis. Shyann performed oral sex on Hultman for about 30 minutes. He

gave her $20. Shyann estimated that during the next year and a half, she

performed oral sex on Hultman 10 times or fewer. He gave her $20 each time.

Shyann testified that on one occasion, she and Kylie were in Hultman’s

kitchen when they heard a funny noise coming from the guest bedroom. They

peeked through a crack in the doorway and saw Chelsea and Hultman having sex

on the bed. Hultman stopped when he realized that Shyann and Kylie were

present. He told them not to say anything and gave them each some money. On

another occasion, Shyann walked in on Hultman while he was performing oral

sex on Kylie and Chelsea.

Hultman gave Shyann an iPhone 4S, but Hultman took it back to the store.

He gave her another cell phone shortly before the summer of 2013. Hultman

occasionally showed her pornography. Shyann said that the women “kind of

looked like [] teenager[s] but kind of looked like [] adult[s],” while the men

appeared to be in their 20’s and 30’s.

Dylan testified that he usually stayed in the living room watching

television or using the computer, or was outside watering the roses when Hultman

and Shyann were alone in another room. Hultman would take Shyann into a

bedroom almost every time they went to his house. Hultman gave Dylan toys and

candy and paid him $5 or $10 to water the roses.

At trial, Kylie initially denied having had any sexual contact with

Hultman. Kylie acknowledged that her sister, Chelsea, had told her that she had

performed oral sex on Hultman and that he had paid her $20. During her

testimony, Kylie became visibly upset and started to cry. After a recess, Kylie

testified that she had told Shyann that Hultman had made her suck his penis.

Kylie said that she performed oral sex on Hultman once. She was 13 years old at

the time. On another occasion, Hultman tried to take her pants off. She told him

no, but he took them off anyway and performed oral sex on her for 20 minutes.

He paid her $20. Hultman tried to convince her to have sex with him. He said to

her, “The other girls get fucked, so why don't you get fucked, too.”

Kylie testified that she and Shyann were in the kitchen when they heard

noises coming from the back bedroom. The bedroom door was partially open.

Kylie and Shyann saw Hultman and Chelsea having sex. Chelsea later told Kylie,

“Don't tell mom what happened.”

Chelsea testified that she met Hultman when she was walking her dogs.

He was a cool person. Hultman paid her $10 to $20 to clean his house. She went

to his home on Mondays, Tuesdays and Thursdays. Chelsea denied having had

any sexual contact with Hultman. Chelsea said, “[Michelle] put us up to all of

this, just to let you know.” Chelsea maintained that Hultman had done nothing

wrong.

The prosecution played Chelsea's initial interview with a police detective,

in which she had stated that she had performed oral sex on Hultman

approximately three times. Chelsea also said that she had had sex with Hultman

and that he had not forced her to have sex with him. On one occasion, they were

having sex when Shyann and Kylie walked into the room.

Detective Frey testified that he was assigned to the Crimes Against

Children Detail with the Sheriff. Frey was completing his master's degree in

counseling. He expected to graduate in May 2014. He had training and

experience in child abuse cases and was familiar with CSAAS. It was presented

as part of the forensic children interview training that he had received, and as part

of his advanced officer training at the Rady Chadwick Center in 2012 and in

2013. Frey had attended conferences in which academics had discussed CSAAS,

and was familiar with scholarly works about CSAAS. He had not applied

CSAAS on a clinical level. His training was academic. Prior to this case, Frey

had never testified about CSAAS.

Defense counsel objected to Frey testifying as an expert on CSAAS on the

ground that he was not qualified to provide expert testimony on the subject. The

trial court overruled the objection.

Frey testified that CSAAS is a combination of patterns that have been

observed in sexually abused children. One pattern is a delayed, contradictory and

unconvincing disclosure of sexual abuse. Another pattern is a complete retraction

of the initial disclosure. There are five characteristics of CSAAS: secrecy,

helplessness, delayed disclosure, entrapment and accommodation, and retraction.

Frey acknowledged that CSAAS is not a diagnostic tool and does not help a

professional to determine whether someone has in fact been molested.

Sheriffs detectives testified about seizing and examining the computer

equipment found in Hultman’s house. They acknowledged that they did not find

anything related to child pornography. They found photographs of the victims on

the same hard drive that contained pornographic anime. None of the photographs

of the victims was provocative or abnormal.

The defense called Veronica Thomas, Ph.D., as its CSAAS expert. She

testified that as a therapeutic approach, CSAAS can apply to some people who

have been molested by someone they know. CSAAS has no relevance to a

criminal investigation or to determine whether sexual molestation did or did not

happen. Dr. Thomas explained that a person who has been sexually assaulted by

a stranger is more likely to discuss the abuse than someone who has been sexually

assaulted by a family member or friend.

Hultman testified that he met Shyann and Dylan after Thanksgiving in

2009 when they were going door to door begging for food. They showed up at

his home the next day with a broken bicycle, which he fixed. Hultman said that

the children looked like refugees. Their clothing was filthy. According to

Hultman, Dylan and Shyann “adopted” him. He began buying clothing for them.

Hultman said that the children’s parents did not provide for them and that they

lived in squalor and were neglected. Hultman considered calling child protective

services. Instead, he spoke to Eric and Michelle about the conditions in the home.

Michelle disliked him. According to Hultman, Eric and Michelle had substance

abuse problems.

Hultman said that he liked having the children at his house. They were

fun and silly and pulled him out of his depression. He maintained that he had not

sexually abused anyone. He denied watching pornographic anime or viewing

18'

pornography. Hultman acknowledged that he had photographed the children at a

park on June 8, 2013, and that he had uploaded those photographs from his

camera to one of his computers.

(Lodgment 4 at 6-11 (footnote omitted).)

TV.

PETITIONER’S CLAIMS

Petitioner raises the following claim for habeas corpus relief: Petitioner’s rights to due

25 j process and a fair trial were violated when the jury viewed the entire contents of Petitioner’s cell

phone during deliberations despite that fact that only limited portions of the cell phone’s contents

were admitted as evidence.

III

STANDARD OF REVIEW

28 U.S.C. § 2254

The standard of review that applies to Petitioner’s claims is stated in 28 U.S.C. § 2254, as

amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”):

(d)

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim—

An application for a writ of habeas corpus on behalf of a person in custody

(1)

resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.

28 U.S.C. § 2254(d). If these standards are difficult to meet, it is because they were meant to be.

As the United States Supreme Court stated in Harrington v. Richter,6 while the AEDPA “stops

short of imposing a complete bar on federal court relitigation of claims already rejected in state

proceedings [,]” habeas relief may be granted only “where there is no possibility fairminded

jurists could disagree that the state court’s decision conflicts” with United States Supreme Court

precedent. Further, a state court factual determination must be presumed correct unless rebutted

by clear and convincing evidence.7

Sources of “Clearly Established Federal Law”

According to Williams v. Taylor.8 the law that controls federal habeas review of state

court decisions under the AEDPA consists of holdings (as opposed to dicta) of Supreme Court

decisions “as of the time of the relevant state-court decision.” To determine what, if any,

6 562 U.S. 86,131 S. Ct. 770, 786, 178 L. Ed. 2d 624 (2011).

7 28 U.S.C. § 2254(e)(1).

8 529 U.S. 362,412,120 S. Ct. 1495,146, L. Ed. 2d 389 (20^).

“clearly established” United States Supreme Court law exists, a federal habeas court also may

examine decisions other than those of the United States Supreme Court.9 Ninth Circuit cases

“may be persuasive.”10 A state court’s decision cannot be contrary to, or an unreasonable

application of, clearly established federal law, if no Supreme Court decision has provided a clear

holding relating to the legal issue the habeas petitioner raised in state court.11

Although a particular state court decision may be both “contrary to” and an

“unreasonable application of’ controlling Supreme Court law, the two phrases have distinct

meanings under Williams.

A state court decision is “contrary to” clearly established federal law if the decision either

applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs

from the result the Supreme Court reached on “materially indistinguishable” facts.12 If a state

court decision denying a claim is “contrary to” controlling Supreme Court precedent, the

reviewing federal habeas court is “unconstrained by § 2254(d)(1).”13 However, the state court

need not cite or even be aware of the controlling Supreme Court cases, “so long as neither the

reasoning nor the result of the state-court decision contradicts them. »14

State court decisions that are not “contrary to” Supreme Court law may be set aside on

federal habeas review only “if they are not merely erroneous, but ‘an unreasonable application’

of clearly established federal law, or based on ‘an unreasonable determination of the facts. >„15

Accordingly, this Court may reject a state court decision that correctly identified the applicable

federal rule but unreasonably applied the rule to the facts of a particular case.16 However, to

obtain federal habeas relief for such an “unreasonable application,” a petitioner must show that

9 LaJoie v. Thompson. 217 F.3d 663,669 n.6 (9th Cir. 2000).

10 Duhaime v. Ducharme. 200 F.3d 597, 600 (9th Cir. 1999).

11 Brewer v. Hall. 378 F.3d 952, 955 (9th Cir. 20041: see also Carey v. Musladin. 549 U.S. 70,77,127, S. Ct. 649,

649,166 L. Ed. 2d 482 (2006) (in the absence of a Supreme Court holding regarding the prejudicial effect of

spectators’ courtroom conduct, the state court’s decision could not have been contrary to or an unreasonable

application of clearly established federal law).

12 Early v. Packer. 537 U.S. 3, 8,123 S. Ct. 362,154 L. Ed. 2d 263 (2002) (per curiam) (citing Williams. 529 U.S.

at 405-06).

13 Williams. 529 U.S. at 406.

14 Early. 537 U.S. at 8.

15 Id at 11 (citing 28 U.S.C. § 2254(d)).

16 See Williams. 529 U.S. at 406-10, 413.

SfcT

the state court’s application of Supreme Court law was “objectively unreasonable” under

Woodford v. Visciotti.17 An “unreasonable application” is different from merely an incorrect

one.18

Where, as here, the California Supreme Court denied the claims without comment, the

state high court’s “silent” denial is considered to be “on the merits” and to rest on the last

reasoned decision on the claims.19 In this case, this Court looks to the grounds the California

Court of Appeal stated in its decision on habeas review.20

VI,

DISCUSSION

Background

Petitioner argues his rights to due process and a fair trial were violated by juror

misconduct. Specifically, Petitioner argues the jurors engaged in misconduct during

deliberations by reviewing all the contents of Petitioner’s cell phone, although only the

screensaver photo and an officer’s notes about text messages found on the phone had been

admitted as evidence at trial.21 (FAP at 16-17.)22

State Court Opinion

The California Court of Appeal denied Petitioner’s claim on habeas review, explaining

“[t]he jury did not engage in misconduct by examining the contents of [Petitioner]’s cell phone”

because “the phone was admitted into evidence without restriction.” (Lodgment 11 at 3.)

III

17 537 U.S. 19, 27,123 S. Ct. 357, 154 L. Ed. 2d 279 (2002).

18 Williams. 529 U.S. at 409-10.

19 See Ylstv. Nunnemaker. 501 U.S. 797, 803-06, 111 S. Ct. 2590,115 L. Ed. 2d 706 (1991); Wilson v. Sellers.

__ U.S.___ , 138 S. Ct. 1188,200 L. Ed. 2d 530 (2018).

20 See Ylst. 501 U.S. at 803-06; Cannedv v. Adams. 706 F.3d 1148,1156-59 (9th Cir. 2013) (holding that “look

through” practice continues to apply on AEDPA review of California Supreme Court summary denials of habeas

petition).

21 Respondent argues Petitioner’s claim is procedurally defaulted in light of the state courts’ denial of the claim as

untimely and pursuant to In re Dixon. 41 Cal.2d 756, 759 (1953). (Answer at 6-10.) In the interest of judicial

economy, this Court will address petitioner’s claim on the merits rather than perform the procedural default analysis.

See Franklin v. Johnson. 290 F.3d 1223, 1232 (9th Cir. 2002) (courts “are empowered to, and in some cases should,

reach the merits of habeas petitions if they are, on their face and without regard to any facts that could be developed

below, clearly not meritorious despite an asserted procedural bar”).

22 This Court refers to the pages of the FAP assigned by the electronic docketing system.

Legal Standard

A criminal defendant has a Sixth Amendment right to be tried by impartial jurors.23 A

jury must decide a case solely on the evidence before them.24 Juror misconduct occurs when a

juror introduces into the jury’s deliberations extrinsic facts that were not admitted in evidence.25

Analysis

The record does not support Petitioner’s claim that the jury committed misconduct by

reviewing the contents of his cell phone. Regardless of what the parties’ intentions might have

been as to what portions of the cell phone’s contents were to be admitted and used at trial,26 the

trial court admitted the cell phone in its entirety. (1 CT at 155; 2 CT at 242; 3 RT at 775.) The

10 jury did not commit any misdeed by considering evidence the trial court admitted.27

Accordingly, this Court finds that the California courts’ rejection of Petitioner’s claim

was neither contrary to, nor involved an unreasonable application of, clearly established federal

law, as determined by the United States Supreme Court. Habeas relief is not warranted.

VII.

RECOMMENDATION

IT THEREFORE IS RECOMMENDED that the District Court issue an Order: (1)

approving and accepting this Report and Recommendation; and (2) directing that Judgment be

entered denying the Petition and dismissing this action with prejudice.

DATED: February 6, 2020

___

HONORAB LOUISE A. LA MOTHE

United States Magistrate Judge

23 Irwin v. Dowd. 366 U.S. 717,722, 81 S. Ct. 1639,6 L. Ed. 2d 751 (1961).

24 Smith v. Phillips. 455 U.S. 209. 217.102 S. Ct. 940. 71 L. Ed. 2d 78 (19821.

25 Thompson v. Borg. 74 F.3d 1571, 1574 (9th Cir. 1996).

26 Petitioner cites to the parties’ discussion of what evidence from the cell phone would be used. (FAP at 16;

Volume 2 Reporter’s Transcript (“RT”) at 496-98.)

27 For the same reason, there is no merit to Petitioner’s suggestion “that the prosecutor had the cell phone

sur[r]eptitiously smuggled in [to the jury room] by the court bailiff.” (FAP at 16.) Again, the trial court admitted

the cell phone into evidence. (1 CT at 155; 2 CT at 242;RT at 775.)

Ft F

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

EASTERN DIVISION

PAUL J. HULTMAN,

Petitioner,

DANIEL PARAMO, Warden,

Respondent.

)

No. ED CV 18-1439-CJC (PLA)

)

ORDER ACCEPTING FINDINGS,

CONCLUSIONS AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

)

On February 26, 2019, the United States Magistrate Judge issued a Report and

Recommendation (“R&R”), recommending that respondent’s Motion to Dismiss should be granted

in part and that, of the six grounds for relief raised by petitioner in the First Amended Petition

(“FAP”), Ground Five should be dismissed as not cognizable, and Grounds Two, Three, Four, and

Six should be dismissed with prejudice because the claims were not filed within the one-year

statute of limitations period, as set forth in the Antiterrorism and Effective Death Penalty Act of

1996 ("AEDPA”). See Pub. L. No. 104-132, 110 Stat. 1214 (1996); 28 U.S.C. § 2244(d)(1). On

April 29, 2019, petitioner filed Objections to the R&R, and on May 9, 2019, he submitted “Errata”

to the Objections, consisting of a declaration from his sister.

In the Objections, petitioner argues, inter alia, that GroundsTwo, Three, Four and Six are

not time barred, and expands upon many of the same arguments he raised in his Opposition to

-L

the Motion to Dismiss regarding statutory and equitable tolling. The Court has reviewed the

Objections, in particular petitioner’s arguments that the California Court of Appeal incorrectly

denied his state petition as untimely, and that equitable tolling is warranted due not only to his

appellate counsel’s misconduct and erroneous advice, but also because there were significant

delays involving his investigator in completing various witness interviews, and petitioner relied on

evidence that was not discovered until his investigator’s final witness interviews concluded in June

2017. The Court finds that petitioner’s arguments are adequately addressed in the R&R.

To the extent, however, that petitioner has attached new exhibits to his Objections in

support of his claim for equitable tolling based on his appellate counsel’s alleged misconduct, the

Court has reviewed the exhibits and concludes that no change to the Magistrate Judge’s

recommendation is warranted. The exhibits, which are purported copies of emails exchanged

between petitioner’s brother and petitioner’s appellate counsel during the time of petitioner’s post

conviction proceedings, do not reflect any attorney misconduct that prevented petitioner from

timely filing his federal petition. In particular, there is no ^indication that appellate counsel ever

unequivocally agreed to prepare and file a state habeas petition, or gave erroneous advice

regarding habeas practice and procedure that contributed to the untimely filing of petitioner’s

federal petition.

regarding how the direct appeal was limited to issues based on the evidence raised at trial, but

nevertheless encouraged petitioner to continue his own post-conviction investigation with the goal

of developing evidence that could form the basis for habeas relief.

Rather, it appears that appellate counsel provided repeated explanations

For example, in an email dated April 30, 2015, appellate counsel stated: “As I have told

you, the trial is over.

considered differently, we are stuck with the way the jury did resolve them.” (ECF No. 27 at 59).

Appellate counsel explained that “legal issues not raised in an appeal cannot be raised in a later

appeal. . . . However, if evidence were to be developed that a defendant is not guilty, then that

could be raised by way of a writ of habeas corpus.” (ECF No. 27 at 59). One month later, in an

email dated May 30, 2015, appellate counsel informed petitioner’s brother that federal habeas

corpus petitions have a one-year deadline that starts to run when the state appeal is final, and at

However many pieces of evidence we think the jury ought to have

¥1

that time, they were “a long way from the appeal being final.” (id at 61). Appellate counsel also

stated that there “is no limit on the state writ other than ‘reasonableness’ or ‘due diligence,”’ and

that he “just sent [petitioner] a letter. . . explaining] the timelines for the federal and state writs

of habeas corpus.” (Id.).

In an email dated June 18, 2015, appellate counsel stated that, in his opinion, “there aren’t

any grounds for filing a [habeas] writ,” and cautioned that “the writ is not a way to re-litigate the

issue of reasonable doubt or to bring up issues that are also raised on appeal,” and that “you only

get one bite at the apple, so if you file prematurely you might preclude yourself from filing again

if or when you develop better information.” (ECF No. 27 at 63). In that same email, appellate

counsel suggested that petitioner should continue to use his investigator “if [petitioner] can” to

“[s]ee what [the investigator] comes up with,” and that appellate counsel would “evaluate any

information ... and consult with the staff lawyer about it so we have two sets of eyes on it.” (Id.).

Appellate counsel advised petitioner’s brother to not “worry about time limits,” as “[w]e are a long

way from the appeal being final. In other words, don’t sit on your hands but don’t fret unduly over

the time constraints.” (Id.).

In a subsequent email dated June 24, 2015, appellate counsel stated “If I were you (and

assuming I could afford it), I would have [the investigator] interview or re-interview all the civilian

witnesses .... Since this would be pretty much a fishing expedition for us, [I] cannot seek funds

for it. But there’s no reason you can’t fish to your heart’s content.” (ECF No. 27 at 66). Regarding

the investigator, appellate counsel.advised: “Your only real chance to prove the allegations are

false is to have the [investigator] re-investigate the case and talk to everybody again and hope you

are able to come up with something. You can’t. . . talk to this person now and somebody else

later. If you do all you can now and it doesn’t work out, at least you know you’ve exhausted every

avenue.” (jd). Later, in an email dated October 8, 2015, appellate counsel stated that, in light of

the recantations of the victims that took place at trial, providing the state court with evidence that

two of the victims again recanted in a post-trial interview, while one victim remained consistent

with her accusations, “would be . .. retrying the issue of credibility and we can’t do that either on

appeal or by way of a writ.” (Id at 69). In an email dated April 14, 2017, appellate counsel

explained that if evidence that supported a habeas petition “came to light,” he would have to

contact his employer and get permission to proceed because his employer would have to ask the

Court of Appeal to appoint, and pay, him for that purpose, and that his “appointment is completed

at this point.'"1 (]d. at 70).

As shown from the above excerpts, appellate counsel unequivocally stated that, in his

opinion, there were no grounds for seeking habeas relief, but nevertheless encouraged petitioner

to continue his investigation. To the extent it could be inferred that appellate counsel impliedly

indicated that he would help prepare a habeas petition, such an implied message was clearly

contingent on new evidence being discovered by petitioner’s investigator that appellate counsel,

upon review, deemed to be an appropriate basis for a habeas claim. Appellate counsel made

clear, however, that based on petitioner’s investigation, he did not believe there were any grounds

for a habeas petition. In short, there is no indication from the email exhibits attached to the

Objections that appellate counsel agreed to file a state habeas petition, but then failed to do so,

or otherwise engaged in any misconduct, let alone egregious misconduct that warrants the

application of equitable tolling. Moreover, although appellate counsel may have expressed his

opinion that petitioner’s proposed habeas arguments were too weak to pursue, counsel’s opinion

in no way prevented petitioner from pursuing habeas relief.2

The Court finds it significant that the email exhibits attached to the Objections show that

in May 2015 -- more than two years before the federal limitations period expired on August 16,

2017 (and before statutory tolling was applied which ultimately extended the deadline to January

8, 2018) -- appellate counsel explained in an email (and also in a letter to petitioner) that, after the

state appeal concluded, petitioner would have one year to file a federal petition. (ECF No. 27 at

61). Thus, long before petitioner’s direct appeal concluded, he was on notice regarding the AEDPA

Petitioner does not provide copies of any emails from appellate counsel between October

8, 2015, and April 14, 2017.

2 Moreover, as pointed out in the R&R, it appears that appellate counsel’s representation of

petitioner ended after the California Court of Appeal denied the direct appeal, as appellate counsel

did not even file the petition for review; rather, petitioner in pro per prepared and filed the petition

for review in the California Supreme Court on April 14, 2016. (See R&R at 13).

time constraints. Based on the foregoing -- and even assuming arguendo that petitioner was

justified in waiting until June 2017 to prepare his habeas claims, when the last round of his

investigator’s witness interviews concluded3 -- nothing prevented petitioner from filing a timely,

protective federal petition. In other words, considering the timeline of petitioner’s state filings, had

petitioner exercised reasonable diligence, he could have filed a protective petition in this Court

before the limitations period expired.

As set forth in the R&R, petitioner’s petition for review was denied by the California

Supreme Court on May 18, 2016. Direct review of petitioner’s conviction therefore concluded on

August 16, 2016, after which he had one year to timely seek federal habeas relief. Bowen v. Roe.

188 F.3d 1157,1158-59 (9th Cir. 1999). Although petitioner had previously been informed by his

appellate counsel of the one-year deadline, he nevertheless did not file his first state petition in

the superior court until August 10, 2017 -- just six days before the AEDPA period expired. That

petition, which was denied on the merits on January 2, 2018, triggered statutory tolling and, as a

result, extended the limitations deadline to January 8,2018. (See R&R at 8-10). On February 25,

2018, petitioner filed his next petition in the California Court of Appeal, which was denied as

untimely on March 14, 2018. (Lodgment Nos. 10, 11). Petitioner’s last state petition, filed in the

California Supreme Court, was denied on August 29, 2018, without comment. (Lodgment Nos.

12, 13). As explained in the R&R, because the state court of appeal denied the petition filed in

that court as untimely, no tolling applied for any time after the superior court petition was denied

on January 2, 2018.4 The one-year limitations period expired just days later, on January 8, 2018.

3 As stated in the R&R, the Court agrees that petitioner’s protracted investigation during

which his investigator interviewed witnesses in September 2014, August 2015, and June 2017,

reflects a lack of diligence and, furthermore, does not amount to an extraordinary circumstance

that prevented petitioner from timely seeking habeas relief. (See R&R at 15). The declaration

from petitioner’s sister (ECF No. 29) does not change this conclusion.

4 When assessing the timeliness of a state petition, federal courts look to “the last

reasoned state court decision,” and, in doing so, “should review the last decision in isolation and

not in combination with decisions by other state courts.” Curiel v. Miller. 830 F.3d 864,869-70 (9th

Cir. 2016) (internal quotations and citation omitted). “When at least one state court has rendered

a reasoned decision, but the last state court to reject a prisoner’s claim issues an order ‘whose

text or accompanying opinion does not disclose the reason for the judgment, [federal courts] ‘look

(See R&R at 10-11). However, given that petitioner was aware that he had only one year to file

his federal petition after his appeal concluded, at the time he filed his superior court petition in

August 2017 (or, for that matter, any time before the one-year period expired on January 8, 2018),

he could have filed a protective federal petition to stop the limitations period from expiring while

he exhausted his claims in state court.5

Following a careful review of the relevant filings, and for the reasons stated above, the

Court agrees with the conclusions set forth in the R&R regarding the application of statutory tolling,

and that no extraordinary circumstances prevented petitioner from filing a timely federal petition.

Petitioner in his Objections also challenges the Court’s dismissal of Ground Five as not

cognizable. In Ground Five, petitioner asserts that his right to due process was violated by the

denial of his state habeas petition without an evidentiary hearing to obtain evidence to prove his

claims. (ECF No. 16 at 50). The Court has reviewed petitioner’s arguments regarding Ground

Five, and finds that no revision of the Magistrate Judge’s recommendation is warranted. See

Franzen v. Brinkman. 877 F.2d 26 (9th Cir. 1989) (per curiam) (“[A] petition alleging errors in the

state post-conviction review process is not addressable through habeas corpus proceedings.”);

Gerlauqh v. Stewart. 129 F.3d 1027, 1045 (9th Cir. 1997) (holding that errors committed in state

post-conviction proceedings are not cognizable in federal habeas proceedings); Smithy. Lockhart.

' 20

through’ the mute decision and presume the higher court agreed with and adopted the reasons

given by the lower court.” id. at 870 (citation omitted). Here, because the California Supreme

Court issued a silent denial, the Court looks through that unexplained decision and presumes the

supreme court agreed with and adopted the timeliness ruling made by the California Court of

Appeal. Although petitioner in his Objections challenges the court of appeal’s determination that

his petition filed in that court was untimely, this Court does not inquire into the correctness of the

court of appeal’s determination because, as the Supreme Court has held, if a state court clearly

rules that a petition is time barred under state law, that is “the end of the matter” and no statutory

tolling applies. See Pace v. DiGualielmo. 544 U.S. 408,414, 125 S.Ct. 1807,1812,161 L.Ed.2d

669 (2005).

5 A protective petition is a timely federal habeas petition that is stayed while the petitioner

exhausts his state court remedies, which suspends the running of the one-year limitations period.

See Pace. 544 U.S. at 416 (“A prisoner seeking state postconviction relief might avoid [the]

predicament” of trying “to exhaust state remedies . . .only to find out at the end that [the state

petition] was never ‘properly filed,”’ by “filing a ‘protective’ petition in federal court and asking the

federal court to stay and abey the federal habeas proceedings until state remedies are

exhausted.”).

882 F.2d 331,334 (8th Cir. 1989) (petitioner’s contention that his motion for post-conviction reiief

was denied without a hearing and without making written findings is not cognizable in a federal

habeas corpus proceeding). Although the federal claims that petitioner presented in his various

state habeas petitions may be cognizable on federal habeas review, the manner in which the

California courts resolved those claims does not constitute a separate basis for habeas relief.

Lastly, the Court addresses petitioner’s arguments regarding the issue of procedural default

with respect to the state appellate court’s habeas denial based on untimeliness. (ECF No. 27 at

40-44). When a petitioner has defaulted his or her federal claims in state court pursuant to an

independent and adequate state procedural rule, “federal habeas review of the claims is barred

unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the

alleged violation of federal law, or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman v. Thompson. 501 U.S. 722, 750, 111 S.Ct. 2546,

115 L.Ed.2d 640 (1991). Whether a habeas petition is procedurally barred from federal review due

to a state procedural rule is a separate determination from whether that same petition was timely

filed under AEDPA’s statute of limitations. See Holland v. Florida. 560 U.S. 631, 650, 130 S.Ct.

2549, 177 L.Ed.2d 130 (2010) (noting that whereas the doctrine of procedural default asks

whether ‘‘federal courts may excuse a petitioner’s failure to comply with a state court’s procedural

rules, notwithstanding the state court’s determination that its own rules had been' violated[,]

[ejquitable tolling, by contrast, asks whether federal courts may excuse a petitioner’s failure to

comply with federal timing rules, an inquiry that does not implicate a state court’s interpretation

of state law") (emphasis in original): see also Cooper v. Neven. 641 F.3d 322, 328 (9th Cir. 2011)

(“whether... [a federal petitioner’s] claims run afoul of AEDPA’s statute of limitations is a separate

issue” from “the district court’s procedural default findings”). Here, it appears that petitioner has

improperly conflated the “cause and prejudice” exception to the procedural bar doctrine with the

requirement that his federal petition be timely filed under AEDPA’s statute of limitations.

Petitioner’s argument that he has shown cause and prejudice warranting an exception to the

procedural bar doctrine is irrelevant to this timeliness determination, and has no bearing on the

R&R’s findings and conclusions.

3lH

As stated supra, petitioner’s remaining arguments in the Objections are sufficiently

addressed in the R&R.6

CONCLUSION

Based on the foregoing and pursuant to 28 U.S.C. § 636, the Court has reviewed the First

Amended Petition, the other records on file herein, the Magistrate Judge’s Report and

Recommendation, and petitioner’s Objections to the Report and Recommendation. The Court has

engaged in a de novo review of those portions of the Report and Recommendation to which

objections have been made. The Court concurs with and accepts the findings and conclusions

of the Magistrate Judge, except as noted below.

ACCORDINGLY, IT IS ORDERED:

The Report and Recommendation is accepted, with the exception that on Page 3,

Line 17, the R&R incorrectly states that the California Supreme Court set forth the summary of the

evidence presented at petitioner’s trial, instead of stating that the California Court of Appeal did

so.

. 17

Respondent’s Motion to Dismiss is granted in part and denied in part, and Grounds

Two, Three/Four, and Six are dismissed with prejudice as time barred, while Ground Five is

dismissed as not cognizable.

On April 29, 2019, petitioner filed an Application for Certificate of Appealability pursuant to

28 U.S.C. § 2253. Because Ground One of the FAP was not dismissed, and therefore judgment

in this matter has not been entered, this Order accepting the recommendation of the Magistrate

Judge is not a “final order” subject to review by the Ninth Circuit. See 28 U.S.C. § 2253(c)(1 )(A)

(unless a certificate of appealability is issued, an appeal of “the final order in a habeas proceeding”

may not be taken to the court of appeals); see also Fed. R. Civ. P. 54(b) (“When an action

presents more than one claim for relief[,]...' any order or other decision ... that adjudicates fewer

than all the claims . .. does not end the action as to any of the claims . .. and may be revised at

any time before the entry of ajudgment adjudicating all the claims[.]”). Accordingly, the Court

denies petitioner’s Application as premature.

r-----

Respondent shall file an Answer and Return to the remaining ground for relief, ml,

Ground One, no later than 30 days from the date of this Order.

The clerk shall serve this Order on all counsel or parties of record.

DATED: May 13, 2019

HONORABLE C0RMAC J. CARNEY

UNITED STATES DISTRICT7JUDGE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

EASTERN DIVISION

PAUL J. HULTMAN,

)

Petitioner,

DANIEL PARAMO, Warden,

Respondents.

No. ED CV 18-1439-CJC (PLA)

)

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

RE: RESPONDENT'S MOTION TO DISMISS

)

This Report and Recommendation is submitted to the Honorable Cormac J. Carney, United

States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States

District Court for the Central District of California.

Magistrate Judge recommends that respondent’s Motion to Dismiss be granted in part and denied

in part.

For the reasons discussed below, the

t ^

SUMMARY OF PROCEEDINGS

On April 17, 2014, a San Bernardino County Superior Court jury convicted petitioner of one

count of continuous sexual abuse of a child (Cal. Penal Code § 288.5(a)), two counts of

committing a lewd act upon a child under fourteen (Cal. Penal Code § 288(a)), and one count of

committing lewd or lascivious acts upon a child of fourteen orfifteen years of age (Cal. Penal Code

§ 288(c)). The jury also found true the allegation that petitioner was convicted of committing

sexual offenses against more than one victim (Cal. Penal Code §§ 667.61(b), (e)(4)). The trial

court sentenced petitioner to a prison term of forty-eight years to life. (ECF No. 16 at 4; Lodgment

No. 4 at 2).

Petitioner filed a direct appeal. (Lodgment No. 1). On March 15,2016, the California Court

of Appeal affirmed the judgment. (Lodgment No. 4). Petitioner filed a petition for review in the

California Supreme Court, which was denied on May 18, 2016. (Lodgment Nos. 5, 6).

On August 10, 2017, petitioner constructively filed a habeas petition in the Los Angeles

County Superior Court.1 (Lodgment No. 7). On September 28, 2017, petitioner filed an amended

habeas petition. (Lodgment No. 8). On January 2, 2018, the superior court issued a reasoned

decision denying the petition on the merits.2 (Lodgment No. 9). On February 25, 2018, petitioner

constructively filed a petition in the California Court of Appeal. (Lodgment No. 10). On March 14,

2018, the California Court of Appeal denied the petition as untimely and because certain claims

could have been raised on appeal. The appellate court also determined that, even assuming the

petition was not procedurally barred, the claims failed on their merits as well. (Lodgment No. 11).

Petitioner next constructively filed a petition in the California. Supreme Court on April 30, 2018.

Under the “mailbox rule,” a court will deem a petition constructively filed on the date the

prisoner gives prison authorities the petition to mail to court. See Huizarv. Carev. 273 F.3d 1220,

1223 (9th Cir. 2001) (a prisoner’s federal or state habeas petition is deemed “filed at the time [he]

delivers] it to the prison authorities for forwarding to the court clerk”) (internal quotations and

citation omitted).

, .

2 In the superior court’s denial, the court also noted that the petition raised issues that

could have been raised on appeal, but were not. (Lodgment No. 9 at 6).

' 1

(Lodgment No. 12). That petition was denied on August 29, 2018, without comment. (Lodgment

No. 13).

On July 2, 2018, while petitioner’s petition in the California Supreme Court was pending,

petitioner constructively filed his Petition in this Court. The Petition contained both exhausted and

unexhausted claims. (ECF No. 1). On July 11,2018, the Court granted petitioner’s motion for a

stay while petitioner was pursuing exhaustion of his unexhausted claims in the California Supreme

Court. (ECF Nos. 3, 5). On September 27, 2018, the Court lifted the stay after receiving notice

from petitioner that the California Supreme Court denied his habeas petition and exhaustion was

completed. (ECF No. 11). On October 9, 2018, petitioner filed the operative First Amended

Petition (“FAP").3 (ECF No. 16). On.November 19, 2018, respondent filed a Motion to Dismiss,

arguing that the FAP is untimely. (ECF No. 18). On December 17, 2018, petitioner filed an

Opposition to the Motion. (ECF No. 20).

The Motion is deemed submitted and is ready for a decision.

SUMMARY OF FACTS

The California Supreme Court, in its denial .of petitioner’s direct appeal, set forth the

following summary of the evidence presented at petitioner’s trial:

At trial, the jury heard evidence that Eric G. and his wife [FN] moved

into [petitioner’s] neighborhood in January 2009. Eric’s daughter,

Shyann, and son, Dylan, had friends who lived on the same street as

[petitioner], [Petitioner] befriended Shyann and Dylan. He repaired

their bicycles and paid them for doing yard work. He bought toys and

food for them, and took them to the pool and the store.

[FN]

Eric’s wife, who was Shyann and Dylan’s

stepmother, died in November 2012.

Eric was uncomfortable about [petitioner’s] relationship with his

children, and became more concerned after [petitioner] gave Shyann

a cell phone. In approximately February 2013, Eric told [petitioner] to

stay away from his children. He instructed his children not to go to

3 The six grounds for relief asserted in the FAP were also asserted in the original Petition

(See ECF Nos. 1,16).

- 1

[petitioner's] house. Eric testified that Shyann was acting “funny.”

She was withdrawn and secretive, in June, his son Dyian toid him

that he and Shyann were still seeing [petitioner] and that [petitioner]

had given Shyann another cell phone and told her to hide it.

[Petitioner] was meeting them in a park. Dylan also told Eric that he

and Shyann had watched pornography with [petitioner]. In June,

Shyann told Eric’s girlfriend, Michelle, that [petitioner] had said, “let

me show you how to suck my dick,” and that he would whisper “oh,

beautiful!,] good girl” as she engaged in the act. Eric and Michelle

went to [petitioner’s] home to confront him. When [petitioner] fled,

they contacted the police.

At the time of the trial, Shyann was 13 years old. Shyann testified that

she did not remember what happened the first time she performed

oral sex on [petitioner]. After reviewing her initial statement to the

police, Shyann said that [petitioner] asked her to go to his room. He •

pushed her by her shoulder and said that he had been doing kind

things for her and buying her things, and that she had to do something

nice for him. He undid the button on his pajama pants. His penis was

hard. Shyann said that Kylie and Chelseaf, her friends who lived in

the neighborhood,] had told her that [petitioner] had made them suck

his penis. Shyann performed oral sex on [petitioner] for about 30

minutes. He gave her $20. Shyann estimated that during the next

year and a half, she performed oral sex on [petitioner] 10 times or

fewer. He gave her $20 each time.

Shyann testified that on one occasion, she and Kylie were in

[petitioner’s] kitchen when they heard a funny noise coming from the

guest-bedroom. They peeked through a crack in the doorway and

saw Chelsea and [petitioner] having sex on the bed. [Petitioner]

stopped when he realized that Shyann and Kylie were present. He

told them not to say anything and gave them each some money. On

another occasion, Shyann walked in on [petitioner] while he was

performing oral sex on Kylie and Chelsea.

[Petitioner] gave Shyann an iPhone 4S, but [petitioner] tookit back to

the store. He gave her another cell phone shortly before the summer

of 2013. [Petitioner] occasionally showed her pornography. Shyann

said that the women “kind of looked like [ ] teenager[s] but kind of

looked like [ ] adult[s],” while the men appeared to be in their 20’s and

30’s.

Dylan testified that he usually stayed in the living room watching

television or using the computer, or was outside watering the roses

when [petitioner] and Shyann were alone in another room. [Petitioner]

would take Shyann into a bedroom almost every time they went to his

house. [Petitioner] gave Dylan toys and candy and paid him $5 or $10

to water the roses.

At trial, Kylie initially denied having had any sexual contact with

[petitioner], Kylie acknowledged that her sister, Chelsea, had told her

that she had performed oral,sex on [petitioner] and that he had paid

her $20. During her testimony, Kylie became visibly upset and started

to cry. After a recess, Kylie testified that she had told Shyann that

[petitioner] had made her suck his penis. Kylie said that she

• 1

performed oral sex on [petitioner] once. She was 13 years old at the

time. On another occasion, [petitioner] tried to take her pants off. She

told him no, but he took them off anyway and performed oral sex on

her for 20 minutes. He paid her $20. [Petitioner] tried to convince her

to have sex with him. He said to her, “The other girls get fucked, so

why don’t you get fucked,"too.”

’Kylie testified that she and Shyann were in the kitchen when they

heard noises coming from the back bedroom. The bedroom door was

partially open. Kylie and Shyann saw [petitioner] and Chelsea having

sex. Chelsea later told Kylie, “Don’t tell mom what happened.”

Chelsea testified that she met [petitioner] when she was walking her

dogs. He was a cool person. [Petitioner] paid her $10 to $20 to clean

his house. She went to his home on Mondays, Tuesdays and

Thursdays. Chelsea denied having had any sexual contact with

[petitioner], Chelsea said, “[Michelle] put us up to all of this, just to let

you know.” Chelsea maintained that [petitioner] had done nothing

wrong.

The prosecution played Chelsea’s initial interview with a police

detective, in which she had stated that she had performed oral sex on

[petitioner] approximately three times. Chelsea also said that she had

had sex with [petitioner] and that he had not forced her to have sex

with him. On one occasion, they were having sex when Shyann and

Kylie walked into the room.

Detective Frey testified that he was assigned to the Crimes Against

Children Detail with the Sheriff. Frey was completing his master’s

degree in counseling. He expected to graduate in May 2014. He had

training and experience in child abuse cases and was familiar with [a

pattern known as Child Sexual Abuse Accommodation Syndrome

(“CSAAS”), Ljl, the tendency for child sexual abuse victims to delay

disclosure or recant their initial disclosures]. It was presented as part

of the forensic children interview training that he had received, and as

part of his advanced officer training at the Rady Chadwick Center in

2012 and in 2013. Frey had attended conferences in which

academics had discussed CSAAS, and was familiar with scholarly

works about CSAAS. He had not applied CSAAS on a clinical level.

His training was academic. Prior to this case, Frey had never testified

about CSAAS.

Defense counsel objected to Frey testifying as an expert on CSAAS

on the ground that he was not qualified to provide expert testimony on

the subject. The trial court overruled the objection.

Frey testified that CSAAS is a combination of patterns that have been

observed in sexually abused children. One pattern is a delayed,

contradictory and unconvincing disclosure of sexual abuse. Another

pattern is a complete retraction of the initial disclosure. There are five

characteristics of CSAAS: secrecy, helplessness, delayed disclosure,

entrapment and accommodation, and retraction. Frey acknowledged

that CSAAS is not a diagnostic tool and does not help a professional

to determine whether someone has in fact been molested.

Sheriffs detectives testified about seizingand examining the com puter

equipmentfouna in [petitioners] house, i hey acknowledged that they

did not find anything related to child pornography. They found

photographs of the victims on the same hard drive that contained

pornographic anime. None of the photographs of the victims was

provocative or abnormal.

The defense called Veronica Thomas, Ph.D., as its CSAAS expert.

She testified that as a therapeutic approach, CSAAS can apply to

some people who have been molested by someone they know.

CSAAS has no relevance to a criminal investigation or to determine

whether sexual molestation did or did not happen. Dr. Thomas

explained that a person who has been sexually assaulted by a

stranger is more likely to discuss the abuse than someone who has

been sexually assaulted by a family member or friend.

[Petitioner] testified that he met Shyann and Dylan after Thanksgiving

in 2009 when they were going door to door begging for food. They

showed up at his home the next day with a broken bicycle, which he

fixed. [Petitioner] said that the children looked like refugees. Their

clothing was filthy. According to [petitioner], Dylan and Shyann

“adopted” him. He began buying clothing for them. [Petitioner] said

that the children’s parents did not provide for them and that they lived

in squalor and were neglected. [Petitioner] considered calling child

protective services. Instead, he spoke to Eric and Michelle about the

conditions in the home. Michelle disliked him. According to

[petitioner], Eric and Mjchelle had substance abuse problems.

[Petitioner] said that he liked having the children at his house. They

were fun and silly and pulled him out of his depression. He

maintained that he had not sexually abused anyone. He denied

watching pornographic anime or viewing pornography. [Petitioner]

acknowledged that he had photographed the children at a park on

June 8, 2013, and that he had uploaded those photographs from his

camera to one of his computers.

(Lodgment No, 4 at 7-12).

III

PETITIONER’S CONTENTIONS

The ]ury committed misconduct by viewing the contents of petitioner’s cell phone

during deliberations. (ECF No. 16 at 16-17).

Petitioner’s trial counsel was ineffective. (ECF No. 16 at 19-37).

The prosecutor committed misconduct. (ECF No. 16 at 38-44).

Cumulative error deprived petitioner of a fair trial. (ECF No. 16 at 45-49).

Petitioner was deprived of his right to due process when the state court denied his

state habeas petition without an evidentiary hearing. (ECF No. 16 at 50-58).

Petitioner’s appellate counsel was ineffective. (ECF No. 16 at 59-61).

THE STATUTE OF LIMITATIONS

Respondent argues that petitioner.did not file the Petition within the one-year statute of

limitations as prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

Pub. L. No. 104-132, 110 Stat. 1214 (1996); 28 U.S.C. § 2244(d)(1). (ECF No. 18-1 at 3-7).

THE LIMITATIONS PERIOD

The AEDPA imposes a one-year period of limitation for state prisoners to file a federal

petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1) (“the statute of limitations”). That

section provides:

A 1-year period of limitation shall apply to an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a

State court. The limitation period shall run from the latest of (A)

the date on which the judgment became final by the conclusion

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

(B)

the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws of the .

United States is removed, if the applicant was prevented from filing by

such State action;

(C)

the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively applicable

to cases on collateral review; or

(D)

the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

28 U.S.C. § 2244(d)(1)(A)-(D).

The Court has reviewed each of petitioner’s claims with respect to the calculation of the

limitations period.

misconduct, the evidence supporting this claim consists of copies of two interview summaries

For Ground One, in which petitioner contends that the jury committed

dated April 13, 2017, and June 29,2017. The summaries, prepared by an investigator, detail two

interviews with Juror Paula Townsend, in which she stated that during deliberations the jury

viewed the contents of petitioner’s cell phone. (See ECF No. 16-1 at 26-31, 36-38). Although

petitioner obviously knew or had some awareness about the facts of the juror misconduct claim

at some point before these interviews took place, as that prior knowledge was undoubtedly the

catalyst for having the investigator contact Juror Townsend, there does not appear to be anything

in the record that reflects any specific earlier date when petitioner became aware of these facts.

Nor does respondent in the Motion attempt to ascertain when petitioner discovered the factual

predicate of this claim.4 Under these circumstances, and giving petitioner the benefit of the doubt,

the Court will presume for purposes of this statute of limitations analysis that petitioner became

aware of the facts of the juror misconduct claim on April 13, 2017, the date of the first interview

with Juror Townsend. Under § 2244(d)(1)(D), the one-year period expired one year later, on April

13, 2018. Given that the original Petition was not constructively filed in this Court until July 2,

2018, Ground One is time barred unless sufficient statutory and/or equitable tolling applies.

For Grounds Two, Three, Four, and Six of the FAP, it appears that petitioner could have,

through the exercise of reasonable diligence, discovered the factual predicate of these claims

before direct review concluded, as they are based on events at trial or on events that took place

during the appeal process.5 Accordingly, the Court calculates the statute of limitations for these

claims under § 2244(d)(1 )(A). The record shows that after the California Supreme Court denied

petitioner’s petition for review on May 18,2016, petitioner did not seek review in the United States

Supreme Court. For AEDPA purposes, the process of direct review of petitioner’s conviction

4 Petitioner references a “chance” communication over Facebook between his sister and the

juror, during which the jury misconduct claim came to light; however, the date of this Facebook

communication is not known. (See ECF No. 20 at 32).

5 Petitioner’s claim of prosecutorial misconduct in Ground Three is premised on post-trial

interviews conducted by his investigator with two of the victims, Kylie and Chelsea, and their

parents. The interviews took place in September 2014, August 2015, and June 2017. The Court

finds that, based on the information provided in the September 2014 and August 2015 interviews,

petitioner could have, through the exercise of reasonable diligence, discovered the factual

predicate of his prosecutorial misconduct claims by the time direct review concluded. The Court

discusses the interviews in more detail in the equitable tolling analysis in Section IV(C). See infra.

•

concluded on August 16, 2016, when the ninety-day period for filing a petition for certiorari in the

Supreme Court expired. Bowen v. Roe. 188 F.3d 1157, 1158-59 (9th Cir. 1999). The one-year

limitations period for presenting Grounds Two, Three, Four and Six expired one year later, on

August 16, 2017. See 28 U.S.C. § 2244(d). Accordingly, absent sufficient statutory or equitable

tolling, Grounds Two, Three, Four and Six of the FAP are time barred.

In Ground Five, petitioner challenges the denials of his state habeas petitions. As a. rule,

“a petition alleging errors in the state post-conviction review process is not addressable through

habeas corpus proceedings.” Franzen v. Brinkman. 877 F.2d 26 (9th Cir. 1989), Accordingly,

petitioner’s claims in Ground Five are. not cognizable on federal habeas review and should be

dismissed.

STATUTORY TOLLING

The running of the AEDPA is “statutorily tolled” while a “properly filed application for State

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

pending.” 28 U.S.C. § 2244(d)(2). This provision tolls the statute for the time during which a state

prisoner is attempting, through proper use of state court procedures, to exhaust state court

remedies with regard to a particular post-conviction application.

While a petitioner is pursuing a round of state collateral relief, he is entitled to tolling during

the intervals between his state petitions - that is, from the date of the denial of a petition in one

court to the filing date of a subsequent petition in a higher court - provided the petitions were

timely filed understate law. Evans v. Chavis. 546 U.S. 189, 191, 126 S.Ct. 846,163 L.Ed.2d 684

(2006); Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010) (“The period between a California lower

court’s denial of review and the filing of an original petition in a higher court is tolled — because

it is part of a single round of habeas relief-- so long as the filing is timely under California law.”).

However, “[wjhen a California state court determines that a state prisoner’s state habeas petition

is untimely under state law, there is no ‘properly filed’ state petition, and [the state prisoner is] not

entitled to statutory tolling under AEDPA.” Robinson v. Lewis. 795 F.3d 926, 929 (9th Cir. 2015)

(quotation marks and citation omitted); see Pace v. DiGualielmo. 544 U.S. 408, 414, 417, 125

S.Ct. 1807,161 L.Ed.2d 669 (2005) (state petition that was not timely filed was not “properly filed”

for AEDPA purposes).

Here, for Grounds Two, Three, Four, and Six of the FAP, the limitations period started to

run on August 17,2016, and ran Continuously until August 10,2017, when petitioner constructively

filed his first state habeas petition in the superior court. At that point, six days remained in the

one-year period. Tolling was in effect while the superior court petition was pending (including

while petitioner filed an amended petition), Le., until January 2, 2018, when the superior court

issued its denial. Petitioner then constructively filed a habeas petition in the California Court of

Appeal on February 25, 2018.. The appellate court issued a denial on March 14, 2018, stating in

part:

[Petitioner] is not entitled to habeas corpus relief. The petition, filed

more than three years after he was sentenced and nearly two years

after the judgment was affirmed on appeal without an adequate

explanation for the delay, is barred as untimely. (In re Sanders (1999)

21 Cal.4th 697, 703; In re Swain (1949) 34 Cal.2d 300, 302.)

[Petitioner’s] assertions he “acted with all due diligence,” his

“investigator had difficulty in obtaining the evidence presented,” and

he “filed as soon as [he] possibly could,” are insufficient because the

factual and legal bases for the claims now asserted existed either

before sentencing or, at the latest, when the appeal was decided.

“[T]he filing of untimely claims without any serious attempt at

justification is an example of abusive writ practice.” (In re Reno

(2012) 55 Cal.4th 428, 460.)

(Lodgment No. 11 at 2).

The foregoing statement by the California Court of Appeal is a clear determination that the

petition was untimely.6 The petition therefore was not “properly filed” for tolling purposes. TheTact

that the court of appeal denied the petition on additional grounds, including on the merits, does

not alter this conclusion. See Bonner v. Carev. 425 F.3d 1145, 1148-49 (9th Cir. 2005) (“Neither

does the fact that the superior court also denied Bonner’s petition on the merits save his petition.

6 Petitioner in his Opposition argues that the California Court of Appeal erroneously

determined that his petition was untimely. The Supreme Court in Pace held that when a California

Court “clearly rule[s]” that a petition is untimely, ‘“that [is] the end of the matter’ for purposes of §

2244(d)(2).” Pace v. DiGuqlielmo. 544 U.S. at 414 (citing Carev. 536 U.S. at 225, 226). Here,

because the court of appeal unambiguously determined the petition was untimely, this Court does

not analyze the correctness of that ruling, as that is “the end of the matter” with respect to statutory

tolling.

Because the California courts dismissed Bonner’s petition as untimely, his petition was not

'properly filed’ under AEDPA. Accordingly, he is not entitled to tolling under § 2244(d)(2).’’)

(internal footnote omitted), amended. 439 F.3d 993 (9th Cir. 2006). If a petition is denied as

untimely, “none of the time before or during the court’s consideration of that petition is statutorily *

tolled.” See id. Accordingly, no tolling applies after the denial of the superior court habeas petition

on January 2, 2018, when only six days of the one-year limitations period remained. Thus, on

January 8, 2018, the limitations period expired.7 Accordingly, by the time petitioner filed his

habeas petition in the California Court of Appeal on February 25, 2018, the time for seeking

habeas relief in federal court had expired. Moreover, no statutory tolling applies for petitioner’s

last state petition constructively filed on April 30, 2018, in the California Supreme Court, because

it was also filed after the limitations period expired. See Ferguson v. Palmateer. 321 F.3d 820,

823 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the limitations period that

has ended before the state petition was filed”); Jiminez v. Rice. 276 F.3d 478, 482 (9th Cir. 2001)

(state habeas petition filed after the statute of limitations ended “resulted in an absolute.time bar”).

Absent sufficient equitable tolling, Grounds Two, Three, Four, and Six are time-barred.

' 26

The Court recognizes that while petitioner was waiting to hear from the California Court

of Appeal regarding his habeas petition, he was not aware the petition would ultimately be deemed

untimely and therefore not trigger the application of statutory tolling for the time period following

the superior court’s habeas denial for Grounds Two, Three, Four, and Six. The Supreme Court

in Pace, however, held that such a result -- "a petitioner trying in good faith to exhaust state

remedies may litigate in state court for years only to find out at the end that he was never ‘properly

filed’” -- did not justify a different rule with respect to tolling. Pace. 544 U.S. at 416. The Supreme

Court remarked that a prisoner seeking state post-conviction relief might avoid this predicament

“by filing a ‘protective’ petition in federal court and asking the federal court to stay and abey the

federal habeas proceedings until state remedies are exhausted.” id. at 416 (citing Rhines v.

Weber. 544 U.S. 269,125 S.Ct. 1528,1531,161 L.Ed.2d 440 (2005)); see also Bonner. 425 F.3d

at 1149. The Court in Pace noted that a petitioner’s "reasonable confusion about whether a state

filing would be timely will ordinarily constitute ‘good cause’ for him to file in federal court.” Pace.

544 U.S. at 416. The Court notes that, here, petitioner did in fact file such a “protective petition,”

given that petitioner filed his original Petition while his habeas petition in the' California Supreme

Court was pending; however, he did not do so during the limitations period. Petitioner

constructively filed the instant Petition on July 2, 2018, several months after the California Court

of Appeal denied his petition as untimely, and over five months after the limitations period expired

in January 2018 for Grounds Two, Three, Four, and Six.

As for Ground One, in which the limitations period started to run in April 2017, statutory |

tolling was also in effect from August 10, 2017, through January 2, 2018, while the superior court

. 3

petition was pending. This amount of tolling - over four months in total -- is enough to render

Ground One timely, as it extended the one-year deadline for Ground One, originally set for April

13, 2018, beyond the constructive filing date of petitioner’s original Petition filed in this Court on

July 2, 2018.

EQUITABLE TOLLING

The Court now considers whether the remaining grounds for relief are subject to equitable

tolling. In order to qualify, a petitioner must demonstrate: (1) that he has been pursuing his rights

diligently, and (2) that some “extraordinary circumstance” stood in his way that prevented him from

timely filing. Holland v. Florida. 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010)

(citing Pace. 544 U.S. at 418). The “extraordinary circumstance” requirement “suggests that an

external force must cause the untimeliness, rather than . . . merely oversight, miscalculation or

negligence on [the petitioner’s] part, all of which, would preclude the application of equitable

tolling.” Waldron-Ramsev v. Pacholke. 556 F.3d 1008, 1011 (9th Cir. 2009) (quoting Harris v.

•Carter. 51.5 F.3d 1051, 1055 (9th Cir. 2008)) (internal quotation-marks omitted). “The petitioner

must additionally show that the extraordinary circumstances were the cause of his untimeliness,

and that the extraordinary circumstances made it impossible to file a petition on time.” Ramirez

v. Yates. 571 F.3d 993, 998 (9th Cir. 2009) (internal quotations, brackets, and citations omitted).

Equitable tolling determinations are “highly fact-dependent.” Whalem/Hunt v. Early. 233

F.3d 1146,1148 (9th Cir. 2000) (per curiam);see also Lottv. Mueller. 304 F.3d 918, 923 (9th Cir.

2002) (observing that equitable tolling determinations “turn[ ] on an examination of detailed facts”).

A litigant bears a heavy burden to establish that equitable tolling applies, as “the threshold

necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the

rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). This high bar is necessary to

effectuate the “AEPDA’s statutory purpose of encouraging prompt filings in federal court in order

to protect the federal system from being forced to hear stale claims.” Guillory v. Roe. 329 F.3d

1015, 1018 (9th Cir. 2003) (internal quotations and citation omitted).

•

Additionally, “[t]he diligence required for equitable tolling purposes is ‘reasonable diligence,’ |

not maximum feasible diligence.’” Holland, 560 U.S. at 653 (citations and internal quotation marks

omitted).

the extraordinary circumstance, as opposed to some act of the petitioner’s own doing, which

caused the failure to timely file.” Doev. Busby. 661 F.3d 1001; 1012-13 (9th Cir. 2011) (citations

omitted).

The purpose of requiring a habeas petitioner to show diligence is to verify that it was

Petitioner asserts that he is entitled to equitable tolling for several reasons. First, petitioner

states that a delay occurred because his appellate counsel told him not to file a state habeas

petition until after the direct appeal became final, and also did not return petitioner’s trial transcripts

and other records to petitioner until September 2016. At the same time, petitioner also asserts

that his appellate counsel failed to investigate and file a habeas petition. (ECF No. 20 at 4, 8-9).

None of these reasons warrants equitable tolling.

petitioner’s appellate counsel ever agreed to prepare and file a state habeas petition for petitioner

after the direct appeal concluded. Indeed, the Court notes that appellate counsel did not even file

a petition for review in the California Supreme Court -- petitioner in pro per prepared and filed the

petition for review on April 14, 2016. (See Lodgment No. 5 at 2 (petitioner states that he “received

notice from his appellate attorney around March 25th that counsel was not going to file a petition

for review )). Accordingly, it appears that appellate counsel’s representation of petitioner ended

before the petition for review was filed. In any event, “there .is no constitutional right to counsel

on habeas.” Bonin v. Vasquez, 999 F.2d 425, 429 (9th Cir. 1993). Thus, to the extent petitioner

claims he had the right to have appellate counsel represent him on habeas review, his claim fails. 8

Additionally, petitioner cannot show that the receipt of his trial transcripts and records in

September 2016 amounted to an “extraordinary circumstance” that prevented him from timely filing

his Petition in this Court given that, for Grounds Two, Three, Four, and Six of the FAP, the

limitations period commenced in August 2016 and, with statutory tolling, did not expire until

There is no indication in the record that

Nor does appellate counsel’s purported advice to delay filing a state habeas petition until

afterthe appeal concluded amount to an “extraordinary circumstance” warranting equitable tolling.

At the time the direct appeal concluded, petitioner still had the entire one-year period in which to

file his federal petition.

January 2018. Accordingly, as of September 2016 when petitioner received his trial documents,

he had ample time before the AEDPA deadline to timely pursue federal habeas relief. To the

extent petitioner asserts his ignorance of the law is a basis for equitable tolling, the law is well

established that neither limited educational skills nor ignorance of the law constitutes an

“extraordinary circumstance” entitling a habeas petitioner to equitable tolling of the limitation

period. See 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); Bakery, Cal. Dep’tofCorr.. 484 Fed.Appx. 130,

131 (9th Cir. 2012) (“Low literacy levels, lack of legal knowledge, and need for some assistance

. . . are not extraordinary circumstances to warrant equitable tolling”) (citable pursuant to Ninth

Circuit Rule 36-3).

Petitioner also asserts that the investigation he undertook before filing his superior court

habeas petition was “hampered by having to locate transient witnesses and re-engaging his

investigator who was out of the Country and otherwise engaged in other investigations.” (ECF No.

20 at 9). In support of his claims, petitioner presents, inter alia, copies of summaries of interviews

conducted by his investigator of two of the victims - sisters Kylie and Chelsea - and their parents.

The interviews are dated September 14,2014, August 14, 2015, and June 9, 2017. (ECF No! 16-

2 at 80-88, 135-46, 160-72). As set forth supra, petitioner was charged with and convicted of

sexually abusing Kylie and Chelsea along with a third victim, Shyann. The summaries reflect that

Kylie, Chelsea, and their parents stated that petitioner did not commit the charged crimes, and that

the sisters falsely accused petitioner because they felt threatened by Shyann’s father’s girlfriend

(Michelle). (See id.).

Petitioner has not demonstrated that his reliance on a private investigator, and delays in

the investigation, prevented him from timely filing his Petition.

investigator interviewed Kylie, Chelsea, and their parents during September 2014 and August

2015, during which Kylie and Chelsea stated that petitioner did not commit the charged crimes,

that they were pressured by others to go along with the false accusations, and that Kylie and

Chelsea told the prosecutor that petitioner had not harmed them but the prosecutor told them they

As mentioned above, the

could not change their stories. Although the investigator followed up with the family again in June

2017, petitioner does not explain why this last round of interviews was necessary in order to

pursue habeas relief for Grounds Two, Three, Four and Six. In other words, from the record it is

clear that petitioner could have, at a minimum, relied on the September 2014 and August 2015

interviews to prepare his habeas claims. Moreover, the long delays between interviews reflect a

lack of diligence. The Court is not persuaded that the investigator’s apparently open-ended

investigation constitutes an “extraordinary circumstance” that prevented petitioner from timely

filing. “All prisoners who raise fact-based habeas claims must undertake, to some extent, an

investigation into . . . the available facts that support their claims.” Frize v. Marshall. 2008 WL

4861521, at *6 (C.D. Cal. Oct. 30,2008). Even if petitioner’s investigator was unavailable for large

expanses of time, that alone would not have prevented petitioner from using other means - e.q..

a different investigator - to carry out the interviews in order for him to timely prepare and file his

claims. Accordingly, the Court concludes that no equitable tolling is warranted.

To the extent petitioner asserts that his untimely claims should still be considered because

he is actually innocent of the crimes, his assertion fails. The Supreme Court has held that “actual

innocence, if proved, serves as a gateway through which a petitioner may pass whether the

impediment is a procedural bar... or.. . [the] expiration of the statute of limitations.” McQuiaain

v- Perkins, 569 U.S. 383, 386,133S.Ct. 1924,185 L.Ed.2d 1019 (2013): see Lee v. Lamped. 653

F.3d 929, 932 (9th Cir. 2011) (“[A] credible claim of actual innocence constitutes an equitable

exception to AEDPA’S limitations period, and a petitioner who makes Such a showing may pass

through the . . . gateway and have his otherwise time-barred claims heard on the merits.”). The

- 22

Supreme Court has cautioned, however, that "tenable actual-innocence gateway pleas are rare:

‘[A] petitioner does not meet the threshold requirement unless he persuades the district court that,

in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty

beyond a reasonable doubt.’” Perkins. 569 U.S. at 386 (quoting Schlup v. Delo. 513 U.S. 298,

329,115 S.Ct. 851,130 L.Ed.2d 808 (1995)): see also House v. Bell. 547 U.S. 518, 522,126 S.Ct.

2064, 165 L.Ed.2d 1 (2006) (the exception applies in “certain exceptional cases involving a

compelling claim of actual innocence”).

To prevail on an actual innocence claim, petitioner must “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. The recantations of Chelsea and Kylie, as set forth in the investigator

interview summaries, along with the other exhibits petitioner provided, are not enough for the

Court to conclude that, in light of this evidence, no reasonable juror would have reached a guilty

verdict. At trial, Chelsea completely recanted and told the jury that Michelle Eddy (the girlfriend

of the father of the third victim, Shyann) “put us up to all of this, just to let you know.” (Lodgment

No. 9 at 9). Chelsea’s prior statements, in which she described being abused, were presented

to the jury. Oh the stand, Kylie denied recollection of the abuse and partially recanted, but then

testified that petitioner did abuse her and the other two girls. The third victim, Shyann, testified

that petitioner sexually abused her on as many as ten occasions, and that she witnessed petitioner

abusing Kylie and Chelsea. Shyann’s brother, Dylan, verified aspects of Shyann’s testimony, as

he testified that, on almost every occasion when Dylan and Shyann went to petitioner’s house,

petitioner would take Shyann into a bedroom while Dylan was either outside or in the living room.

(id at 2-3). The jury heard expert testimony about the fact that children sometimes make false

accusations of molestation based upon adult encouragement or suggestive interviewing

techniques, (id. at 9). The jury also heard expert testimony on CSAAS, which was described as:

a combination of patterns that have been observed in sexually abused children.. One pattern is

a delayed, contradictory and unconvincing disclosure of sexual abuse. Another pattern, is a

complete retraction of the initial disclosure.” (id. at 4). Additionally, the Court notes that, in

connection with his habeas claims, petitioner submitted a copy of a post-trial interview summary

involving Shyann, in which Shyann stated to the investigator that petitioner sexually abused her,

Kylie, and Chelsea. Shyann’s interview statements were consistent with her trial testimony. (ECF

No. 16-2 at 195-98). On this record, petitioner has not shown that, based on the evidence at trial

and the exhibits submitted in support of his federal habeas claims, no reasonable juror would have

voted to find him guilty beyond a reasonable doubt.

Based on the above, although Ground One is not time barred, petitioner has not

demonstrated any extraordinary circumstance that prevented him from timely filing Grounds Two,

Three, Four, and Six. Nor has he demonstrated his factual innocence such that his untimely

claims can pass through the actual innocence gateway and be considered on their merits.

Accordingly, Grounds Two, Three, Four, and Six should be dismissed with prejudice as barred by

the statute of limitations.

RECOMMENDATION

It is recommended that the District Judge issue an Order: (1) accepting this Report and

Recommendation; (2) granting respondent’s Motion to Dismiss in part, and denying the Motion to

Dismiss in part; (3) dismissing Ground Five as not cognizable; and (4) dismissing Grounds Two,

Three,-Four, and Six with prejudice as time barred.

{A'rjv***3

DATED: February 26, 2019

PAUL L. ABRAMS

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.