Case 2:14-cv-06495-FLA-AS Document 217 Filed 02/27/23 Page 1 of 7 Page ID #:6965

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ARTHUR GLENN JONES, SR., Case No. 2:14-cv-06495-FLA(AS)

12 Petitioner,

ORDER ACCEPTING FINDINGS,

13 v. CONCLUSIONS, AND

RECOMMENDATIONS OF UNITED

14

J. LIZARRAGA, Warden, STATES MAGISTRATE JUDGE

15

16 Respondent. 17 18 Pursuant to 28 U.S.C. section 636, the court has reviewed 19 the Petition, all the records herein, and the attached Report and 20 Recommendation of United States Magistrate Judge. After having 21 made a de novo determination of the portions of the Report and 22 Recommendation to which Objections were directed, the court 23 concurs with and accepts the findings and conclusions of the 24 Magistrate Judge. The court addresses the most pertinent of 25 Petitioner’s Objections, below. 26 /// 27 /// 28 /// Case 2:14-cv-06495-FLA-AS Document 217 Filed 02/27/23 Page 2 of 7 Page ID #:6966

1 1. Any Ambiguity in the Report and Recommendation Regarding 2 the Standard for “New” Evidence Does Not Impact the 3 Outcome Here. 4 In his Objections, Petitioner argues that the Magistrate 5 Judge erred in defining “new” evidence for purposes of an actual 6 innocence analysis as evidence that was unavailable to Petitioner 7 at trial. Dkt. 216 at 23-24. 8 As Petitioner notes (Dkt. 216 at 23), and the Report and 9 Recommendation correctly states (Dkt. 209 at 28), a showing of 10 actual innocence must be based on “new reliable evidence - 11 whether it be exculpatory scientific evidence, trustworthy 12 eyewitness accounts, or critical physical evidence - that was not 13 presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995) 14 (emphasis added). To the extent the Report and Recommendation 15 was ambiguous on this point (see, e.g., Dkt. 209 at 32-33 n. 27), 16 the ambiguity does not alter the analysis presented in the Report 17 and Recommendation, as the Magistrate Judge cited the correct 18 standard and, in any event, considered all the evidence 19 Petitioner presented in support of his actual innocence claim, 20 regardless of whether it had been available and/or presented at 21 trial. Dkt. 209 at 28, 32-73. 22 2. Petitioner’s Arguments Regarding the Destruction of State 23 Court Records Do Not Impact the Outcome Here. 24 Petitioner also argues he was prevented from presenting 25 evidence of his innocence because the state court record has been 26 destroyed. Dkt. 216 at 13-16, 18-20, 45, 51.1 At times, 27 1 Petitioner also argues that the Magistrate Judge erred by 28 denying Petitioner’s requests for additional discovery. Dkt. 216

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1 Petitioner fails to distinguish between the trial exhibits, which 2 were destroyed in 1991 (Dkt. 216 at 62), and the remaining state 3 court record from Petitioner’s state court appeal, which was 4 destroyed in 2005 (Dkt. 216 at 55). (See, e.g., Dkt. 216 at 13- 5 14, 16, 45, 48). Both categories of evidence are discussed below. 6 a. Trial Exhibits 7 With respect to the trial exhibits, which were destroyed in 8 1991 (Dkt. 216 at 62), Petitioner has not established how any of 9 this physical evidence would have proven his innocence had it not 10 been destroyed. Specifically, to the extent the trial exhibits 11 contained any physical evidence that might have been subjected to 12 re-testing, the evidence presented at trial benefited Petitioner 13 and there is no reason for the court to conclude that new testing 14 would have furthered Petitioner’s claim of innocence. 15 First, Petitioner argues that the gun found at the time of 16 his arrest was not the one that fired the shell casing found at 17 the shooting scene and that, because the exhibits were destroyed, 18 new ballistics testing could not be performed. Dkt. 216 at 18-19. 19 Petitioner admits, however, that his jury heard testimony that the 20 shell casing did not match the gun. Dkt. 216 at 18, 30-31. It is 21 not reasonable to conclude that additional testing of the gun or 22

23 at 2, 11, 14, 20, 46-48, 51. Petitioner has not shown how the Magistrate Judge’s denial of Petitioner’s request to engage in 24 further discovery prevented Petitioner from obtaining evidence of 25 his innocence, particularly where it appears that the evidence Petitioner sought through discovery has been destroyed. Moreover, 26 Petitioner has not shown that he would have been able to discover any additional evidence that was not uncovered during the state 27 court post-conviction discovery proceedings. See Dkt. 216 at 60- 63. 28

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1 shell casing, had they not been destroyed, would have produced 2 additional exculpatory evidence. 3 Similarly, Petitioner argues that gunshot residue testing of 4 Petitioner’s clothing was negative and that, had the clothing 5 been saved, a variety of new forensic testing could have been 6 conducted. Dkt. 216 at 18-19. As with the ballistics evidence, 7 the forensic testing of Petitioner’s clothing conducted before 8 trial benefited Petitioner, as it did not indicate the presence 9 of gunshot residue on Petitioner’s clothing. Dkt. 216 at 32-33. 10 Other than mere speculation, Petitioner has not shown that 11 additional testing of his clothing would have produced any 12 additional evidence of his innocence. 13 Finally, to the extent Petitioner argues additional 14 toxicology testing could have proven his innocence, his argument 15 is misguided. Dkt. 216 at 19. The fact that Petitioner did not 16 have any drugs other than phencyclidine in his blood at one given 17 point in time does not prove that he never consumed other drugs. 18 b. Appellate Record 19 As to the appellate record, which would have included copies 20 of the transcripts from Petitioner’s trial but was destroyed in 21 2005 (Dkt. 216 at 55), Petitioner has not presented any credible 22 reason for the court to conclude that anything in the destroyed 23 record supported his claim of innocence beyond what the parties 24 have presented here and the Magistrate Judge addressed in the 25 Report and Recommendation.2 26 2 The court notes that it is unclear what standard of diligence 27 applies when a petitioner invokes the actual innocence exception to a procedural bar. See Lee v. Lampert, 653 F.3d 929, 934 (9th 28 Cir. 2011) (stating that “[b]ecause this case does not present

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1 3. Petitioner Has Not Established Actual Innocence Under the 2 Schlup Standard. 3 The remaining arguments Petitioner presents in the 4 Objections lack merit for the reasons stated in the Report and 5 Recommendation. Ultimately, Petitioner presents nothing more 6 than his interpretation of inconsistencies in the evidence and 7 urges the court to find that these inconsistencies are proof that 8 the evidence presented against Petitioner was false or perjured. 9 Such inconsistencies do not prove falsity. See United States v. 10 Croft, 124 F.3d 1109, 1119 (9th Cir. 1997) (holding that actual 11 falsity was not shown where witnesses merely had “conflicting 12 recollections of events”); United States v. Zuno-Arce, 44 F.3d 13 1320, 1423 (9th Cir. 1995) (observing that discrepancies in 14 15

the question, we need not—and do not—decide what diligence, if 16 any, a petitioner must demonstrate in order to qualify for the 17 actual innocence exception recognized in this opinion,” and comparing Lopez v. Trani, 628 F.3d 1228, 1231 (10th Cir. 2010) 18 (requiring no showing of diligence by a petitioner seeking equitable tolling on actual innocence grounds), with Flanders v. 19 Graves, 299 F.3d 974, 978 (8th Cir. 2002) (requiring a petitioner seeking equitable tolling on actual innocence grounds to show 20 either that a state-created barrier prevented his timely 21 discovery of relevant facts or that a “reasonably diligent petitioner” could not have discovered such facts in time to file 22 within the limitations period)). Nevertheless, the court notes that it was due only to Petitioner’s lack of diligence in 23 pursuing his current claims that his appellate record was destroyed before Petitioner pursued federal habeas relief. 24 Perhaps the most substantial bit of evidence in support of 25 Petitioner’s claim of innocence is the declaration of Charles Preyer. This declaration was executed in 1994 (Dkt. 74, Exh. R), 26 more than ten years before the appellate record in Petitioner’s case was destroyed. Yet, Petitioner waited two decades after 27 Preyer executed his declaration to file the instant Petition, by which time the state appellate record had been destroyed. 28

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1 evidence “could as easily flow from errors in recollection as 2 from lies”). 3 Based on the evidence of record, as presented by Petitioner 4 and addressed in the Report and Recommendation, Petitioner cannot 5 show “it is more likely than not that no reasonable juror would 6 have convicted him in light of the new evidence.” Schlup, 513 7 U.S. at 324; see Diaz v. Holland, No. CV 15-6376-CAS (JEM), 2016 8 WL 1493070, at *4 (C.D. Cal. Mar. 9, 2016) (finding petitioner 9 had not met the Schlup standard of proving actual innocence where 10 his claims were based merely on ”numerous inconsistencies and 11 weaknesses in the evidence”), report and recommendation adopted, 12 No. CV 15-6376-CAS (JEM), 2016 WL 1541123 (C.D. Cal. Apr. 13, 13 2016); Antilia v. Holland, No. EDCV 15-875-PSG(AJW), 2015 WL 14 9694682, at *4 (C.D. Cal. Oct. 7, 2015) (“Petitioner's reliance 15 on weaknesses or inconsistencies in the prosecution's case, 16 including his allegation that the prosecutor coerced the main 17 prosecution witness to alter his testimony and testify falsely, 18 do not constitute new evidence of innocence.”), report and 19 recommendation adopted, No. EDCV 15-875-PSG (AJW), 2016 WL 146428 20 (C.D. Cal. Jan. 11, 2016). 21 Therefore, it is hereby ORDERED that (1) Judgment be entered 22 denying the Petition and dismissing this action with prejudice; 23 and (2) Respondent’s motion to dismiss the Petition is denied as 24 moot. 25 /// 26 /// 27 /// 28 ///

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1 It is further ORDERED that the Clerk serve copies of this 2 || Order, the Magistrate Judge’s Report and Recommendation, and the 3 || Judgment herein on Petitioner and Respondent. 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 Dated: February 27, 2023

FERNANDO L.£” AENLLE-ROCHA

8 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28