Jeffrey Ford v. Fernando Gonzalez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY DEAN FORD,  No. 11-15430 Petitioner-Appellant, D.C. No. v.  2:05-cv-00944-

FERNANDO GONZALEZ, LKK-GGH

Respondent-Appellee.  OPINION

Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, Senior District Judge, Presiding

Submitted March 12, 2012* San Francisco, California

Before: John T. Noonan, Jr., M. Margaret McKeown, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.; Dissent by Judge Noonan

*The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

7753 7756 FORD v. GONZALEZ

COUNSEL

Marylou Hillberg, Sebastopol, California, for the petitioner- appellant.

Kamala D. Harris, Michael P. Farrell, Brian G. Smiley, Jef- frey Grant, California Department of Justice, Sacramento, California, for the respondent-appellee.

OPINION

M. SMITH, Circuit Judge:

Petitioner-Appellant Jeffrey Dean Ford (Ford), a California state prisoner,…

Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge NOONAN.

OPINION

Petitioner-Appellant Jeffrey Dean Ford (Ford), a California state prisoner, appeals from the district court’s dismissal as untimely of three claims in his petition for a writ of habeas corpus, under 28 U.S.C. § 2254 . Ford argues that his claims are timely because the prosecutor withheld evidence that Constance Goins (Goins), a witness for the prosecution at his trial, received lenient treatment in her own criminal cases in return for testifying against him. We hold that Ford is not entitled to delayed commencement of the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. §§ 2241 et seq., because the factual predicate of his claims could have been discovered had he exercised due diligence at his trial. We also *1233 hold that Ford is not entitled to equitable tolling because he did not exercise reasonable diligence, and no extraordinary circumstance prevented the timely filing of his claims. Accordingly, we affirm the district court’s dismissal of his habeas claims as time-barred.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2000, Detective Danny…

dissenting:

The majority forbids a federal court from hearing Ford’s habeas petition on the merits, not because the government in Ford’s case did not violate Brady, but because Ford, a prisoner at the time, should have, with due diligence and the help of his wife Beverly, been able to discover the government’s breach of Brady. The majority excuses the government’s lapse while it imposes a new requirement on the spouse of a defendant.

Constance Goins was the prosecution’s principal witness against Ford. In the lead-up to Ford’s trial, the government averred that it knew nothing of an April, 2002 case against Goins for a violation of her probation. It further averred that the status of that case had “no connection” to her testimony in Ford’s case. The government put Goins on the stand at Ford’s trial and elicited testimony from her that she did not inculpate Ford in order to get out of jail. Any listener would have inferred from her statement that she did not receive favorable treatment in the disposition of her case as a result of her cooperation. The detective who interviewed her in jail testified that the police might have helped her by talking to the district attorney in her…