NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

FEB 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

DEMETRIUS FRANKLIN, No. 18-56145

Petitioner-Appellant, D.C. No. 2:17-cv-04281-DSF-JC v.

RAYMOND MADDEN, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Argued and Submitted December 8, 2020 Pasadena, California

Before: THOMAS, Chief Judge, O’SCANNLAIN, Circuit Judge, and EZRA,** District Judge. Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN

Demetrius Franklin appeals the district court’s adoption of the Magistrate

Judge’s report and recommendation to dismiss his habeas corpus petition as

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. untimely. We entered a certificate of appealability pursuant to 28 U.S.C. §

2253(c)(3). See Lambright v. Stewart, 220 F.3d 1022, 1026 (9th Cir. 2000). We

have jurisdiction under 28 U.S.C. § 1291 and review the district court’s decision de

novo. Stewart v. Cate, 757 F.3d 929, 934 (9th Cir. 2014). We affirm in part and

reverse in part. Because the parties are familiar with the facts of the case, we need

not recount them here.

1. The district court erred in concluding that the statute of limitations

had run on Franklin’s habeas petition. Under the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), the one-year statute of limitations for a federal

habeas petition runs from, as relevant here, “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)(D). “Due diligence does not require the

maximum feasible diligence, but it does require reasonable diligence in the

circumstances.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (internal

quotation marks and citations omitted). Here, the statute of limitations was

triggered when the letter requesting that Shanti Day receive leniency for her

testimony in Franklin’s case was unsealed on April 1, 2016. Given the trial

prosecutor’s express assurances that Day had received no leniency, reasonable

diligence did not require Franklin’s attorney to investigate further into the letter’s

existence during trial. Cf. Quezada v. Scribner, 611 F.3d 1165, 1167–68 (9th Cir. 2010). The statute of limitations was triggered by the unsealing of the letter, the

factual predicate for Franklin’s claim under Brady v. Maryland, 373 U.S. 83

(1963), on April 1, 2016 and expired one year later on April 1, 2017.

The district court also erred in denying Franklin equitable tolling for the

period after the statute of limitations expired on April 1, 2017 and before he filed

his habeas petition on June 8, 2017. A petitioner is entitled to equitable tolling

only if he demonstrates “(1) that he has been pursuing his rights diligently, and (2)

that some extraordinary circumstance stood in his way and prevented timely

filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks

and citations omitted). The California Innocence Project repeatedly indicated that

it would be filing a habeas petition on Franklin’s behalf. The CIP intern stated in

one letter that “[i]f my supervisors believe that this is suitable for Brady material

(which I believe it will), they will begin drafting a habeas petition for you.” In

another letter, she wrote “I believe one of the attorneys at my office is going to

come with me [to meet with you] so that we can start to build your case,” and referred to motions to be filed “[b]efore the habeas process is complete.” 1 Such

affirmative representations coupled with the CIP’s effective abandonment two

weeks before the statute of limitations ran qualifies as an extraordinary

circumstance. See Luna v. Kernan, 784 F.3d 640, 647 (9th Cir. 2015)

(“[A]ffirmatively misleading a petitioner to believe that a timely petition has been

or will soon be filed can constitute egregious professional misconduct . . . .”).

Franklin has demonstrated that he pursued his rights diligently during this period

by hiring new counsel and submitting state and federal habeas petitions quickly.

2. The district court correctly rejected Franklin’s alternative argument

that he qualified for the actual innocence exception to the statute of limitations.

This exception only applies to “cases in which new evidence shows ‘it is more

likely than not that no reasonable juror would have convicted [the petitioner]’” in

light of the new evidence. McQuiggin v. Perkins, 569 U.S. 383, 395 (2013)

(alteration in original) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). We

agree with the district court that the credibility issues and layers of hearsay in

1 The context of the letter indicates that the phrase “start to build your case,” refers to Franklin’s habeas case, not his actual innocence case. Although the letter is undated, it was most likely sent after April 1, 2016, the date of the hearing on the motion to open the sealed document, because it refers to an attached copy of the letter. At that point, the CIP had been developing Franklin’s actual innocence case for over three and a half years, but had only just discovered the factual predicate for his Brady claim, the basis of his habeas petition. The context demonstrates that the term “case” referred to Franklin’s habeas petition. Franklin’s proffered evidence of Shanti Day’s recantation is insufficient to pass

through the Schlup gateway, especially since recantation evidence is already

viewed with suspicion. See Jones v. Taylor, 763 F.3d 1242, 1248 (9th Cir. 2014)

(“Recanting testimony is easy to find but difficult to confirm or refute . . . .”

(quoting Carriger v. Stewart, 132 F.3d 463, 483 (9th Cir. 1997) (en banc)

(Kozinski, J., dissenting))). Because Franklin did not properly present his request

for an evidentiary hearing on this issue to the district court, we consider that

argument waived. See United States v. Robertson, 52 F.3d 789, 791 (9th Cir.1994)

(“Issues not presented to the district court cannot generally be raised for the first

time on appeal.”).

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

FILED

FEB 25 2021

Franklin v. Madden, 18-56145 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

O’SCANNLAIN, Circuit Judge, concurring in part and dissenting in part:

I concur in Part 2 of the Memorandum, which affirms the district court’s

rejection of Franklin’s alternative argument that he qualified for the actual-

innocence exception to the statute of limitations.

However, I respectfully dissent from Part 1. Under the normal operation of

the Antiterrorism and Effective Death Penalty Act, the last date for Franklin to file

a federal habeas petition was April 13, 2000, one year after his conviction became

final. 28 U.S.C. § 2244(d)(1)(A). I would hold that the statute of limitations indeed

expired on such date, and accordingly, that Franklin’s 2017 habeas petition was

time-barred.

First, Franklin is not entitled to delayed commencement of the statute of

limitations under the delayed-discovery provision at 28 U.S.C. § 2244(d)(1)(D).

Under such provision, the statute of limitations is triggered when the factual

predicate “‘could have been discovered though the exercise of due diligence,’ not

when it actually was discovered.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir.

2012) (quoting § 2244(d)(1)(D)) (emphasis added). Here, the district court

properly found that Franklin could—and should—have been aware of the factual

predicate for his Brady claim long before the California Innocence Project (“CIP”)

1 received the Mauro letter, and even before his conviction became final. At the May

1997 hearings on Franklin’s motion for a new trial, prosecutors acknowledged in

open court that Day had been allowed to plead down from a felony to a

misdemeanor. At such time, Franklin’s own counsel expressed his suspicion that

the leniency afforded to Day may have been the result of a “deal” in exchange for

her testimony against Franklin. For Franklin’s counsel, “due diligence” would have

entailed acting upon the suspicion he had expressed. It also would have entailed

simply investigating the docket in Day’s case, where a May 2, 1997, Minute Order

referred to the existence of the Mauro letter.

Second, Franklin is not entitled to equitable tolling for the period while the

CIP was investigating his actual-innocence claim. Contrary to the majority

disposition, CIP never “affirmatively misle[d] [Franklin] to believe that a timely

petition ha[d] been or w[ould] soon be filed” on his behalf. Cf. Luna v. Kernan,

784 F.3d 640, 647 (9th Cir. 2015). Rather, as the district court accurately noted,

CIP accepted Franklin’s case only “to investigate his claim of actual innocence.”

Franklin’s best evidence to the contrary is a letter he received from a CIP intern,

stating that “[i]f my supervisors believe that [the not-yet-unsealed letter requesting

leniency for Day] is suitable for Brady material (which I believe it [sic] will),

[then] they will begin drafting a habeas petition for you.” The relevant statement

2 from the CIP intern was expressly conditional in its language; the relevant

condition pertained to the contents of a document that was not yet unsealed at the

time; and the statement made clear that the ultimate decision on whether or not to

“draft[] a habeas petition for” Franklin would rest with the “supervisors” of the

person making such statement. Nor is Franklin availed by the other undated CIP

letter cited in the majority disposition. Its vague references to “start[ing] to build

[Franklin’s] case” (without differentiation between his actual-innocence case and

his habeas case) and to filing a discovery motion “[b]efore the habeas process is

complete” remain a far cry from an affirmative representation that CIP would

prepare and file a habeas petition on Franklin’s behalf. And in any event, because

the statute of limitations on Franklin’s Brady claim had already expired in 2000—

long before CIP even began investigating his case, in 2012—it cannot be said that

CIP’s actions were the “cause of [his] untimeliness” in filing a federal habeas

petition based on such claim. Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006)

(quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)).

Thus, I would affirm the district court’s decision in its entirety.

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