1 2 3 4 5 6 7 8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 11 EDWARD DEWAYNE DORSEY, Case No. 8:23-cv-00424-FLA-PD 12 Petitioner, ORDER TO SHOW CAUSE RE: 13

DISMISSAL OF PETITION

v. 14

CHRISTIAN PHEIFFER,

15 16 Respondent. 17 18

19 On March 6, 2023, Petitioner Edward Dewayne Dorsey, proceeding pro 20 se, constructively filed a Petition for Writ of Habeas Corpus by a Person in 21 State Custody pursuant to 28 U.S.C. § 2254.1 22 23 24

25 1 The Petition was actually filed on March 9, 2023. Under the mailbox rule of Houston v. Lack, 487 U.S. 266, 275-76 (1988), a prisoner constructively files 26 something on the day he gives it to prison authorities for forwarding to the relevant court. See Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). Courts 27 presume that is the day the prisoner signs the document unless there is evidence to 28 the contrary. See Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (per 1 The Court issues this Order to Show Cause directed to Petitioner 2 because the face of the Petition suggests that it is untimely. 3

I. Procedural History and Petitioner’s Contentions

4 In May 2004, an Orange County Superior Court jury convicted 5 Petitioner of brandishing a firearm, possession of a firearm by a felon, and 6 street terrorism. [See Dkt. No. 1 at 2]; People v. Dorsey, No. G034957, 2006 7 WL 864546, at *1 (Cal. Ct. App. 2006) (“Dorsey I”). He was sentenced to 35 8 years to life in state prison. [See Dkt. No. 1 at 2.] 9 Petitioner appealed, and on April 5, 2006, the California Court of 10 Appeal affirmed the judgment. Dorsey I, 2006 WL 864546, at *5. The 11 California Supreme Court denied review on June 21, 2006. See Cal. App. Cts. 12 Case Info. http://appellatecases.courtinfo.ca.gov/ (search for “Dorsey,” 13 “Edward,” and “Dewayne”) (last visited on May 18, 2023). 14 Nearly two years later, on April 14, 2008, Petitioner filed a habeas 15 petition in the court of appeal, which denied it on May 8. See id. On June 30, 16 2008, he filed a habeas petition in the California Supreme Court, which 17 denied the petition on November 19. See id. 18 In July 2014, Petitioner filed a habeas petition in the superior court, 19 which granted relief and vacated one of his convictions and one of his 20 sentencing enhancements, on July 11. [See Dkt. No. 1 at 7]; People v. Dorsey, 21 No. G051134, 2015 WL 6690234, at *1 (Cal. Ct. App. Nov. 3, 2015) (“Dorsey 22 II”). He was resentenced to 30 years to life in state prison. Dorsey II, 2015 23 WL 6690234, at *1. He did not appeal. See Cal. App. Cts. Case Info. 24 http://appellatecases.courtinfo.ca.gov/ (search for “Dorsey,” “Edward,” and 25 “Dewayne”) (last visited on May 18, 2023). 26 Petitioner did not sign the Petition, but dated the envelope in which it was sent 27 March 6, 2023. [See Dkt. No. 1 at 141.] The Court thus uses that date as the 28 Petition’s constructive filing date. See Butler, 752 F.3d at 1178 n.1. 1 2 In August 2014, Petitioner filed a petition to recall his sentence in 3 superior court, which denied it on December 12. [See Dkt. No. 1 at 8]; Dorsey 4 II, 2015 WL 6690234, at *1. He appealed, and on November 3, 2015, the court 5 of appeal affirmed. See Dorsey II, 2015 WL 6690234, at *1. On December 16, 6 2015, he filed a petition for review in the California Supreme Court, which 7 denied it on January 20, 2016. See Cal. App. Cts. Case Info. http:// 8 appellatecases.courtinfo.ca.gov/ (search for “Dorsey,” “Edward,” and 9 “Dewayne”) (last visited May 18, 2023). 10 According to Petitioner, he filed another habeas petition sometime in 11 2017 in superior court, which denied it on August 21. [See Dkt. No. 1 at 9.] In 12 November 2020, he filed a request for a hearing under People v. Franklin, 63 13 Cal. 4th 261 (2016), which the superior court denied.2 See People v. Dorsey, 14 G059841, 2021 WL 5917997 (Cal. Ct. App. Dec. 15, 2021) (“Dorsey III”). He 15 appealed, and on December 15, 2021, the court of appeal affirmed. See id. at *2. He sought review in the California Supreme Court, which denied review 16 on March 9, 2022. See Cal. App. Cts. Case Info. http://appellatecases. 17 courtinfo.ca.gov/ (search for “Dorsey,” “Edward,” and “Dewayne”) (last 18 visited May 18, 2023). 19 Meanwhile, on January 13, 2022, Petitioner filed a habeas petition in 20 the court of appeal, which denied it on January 27. See id. On February 7, 21 2022, he filed another habeas petition in the California Supreme Court, which 22 denied it on March 16. See id. 23 He constructively filed the instant Petition on March 6, 2023. [See Dkt. 24 No. 1 at 141.] Liberally construed, see Woods v. Carey, 525 F.3d 886, 889-90 25 26 2 In Franklin, the California Supreme Court held that a defendant who will be 27 eligible for a youth offender parole hearing at some point in the future must be 28 “afforded sufficient opportunity to make a record of information relevant to his 1 (9th Cir. 2008) (district courts are obligated to liberally construe pro se 2 litigant filings), the Petition states the following five grounds for relief: 3 (1) Petitioner is actually innocent of the crimes of which he was 4 convicted; 5 (2) trial counsel provided ineffective assistance by committing the 6 following errors: 7 a. failing to investigate two witnesses, one of whom would have 8 provided an alibi for Petitioner, and the other of whom would have testified 9 that he was the person who committed the crimes;3 10 b. failing to convey to Petitioner a favorable plea offer; 11 c. failing to object to evidence obtained from Petitioner during an 12 illegal search and seizure; and 13 d. failing to object to the delay of Petitioner’s preliminary hearing 14 and protect his rights under the Speedy Trial Act; 15 (3) appellate counsel provided ineffective assistance by failing to assert an illegal-search-and-seizure claim on appeal and by neglecting to inform 16 Petitioner of the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) 17 one-year statute of limitations to file a federal habeas petition; 18 (4) post-conviction counsel provided ineffective assistance by failing to 19 advise Petitioner to assert his actual-innocence and ineffective-assistance 20 claims in state court and by failing to advise him of AEDPA’s one-year 21 limitations period; and 22 (5) the restriction on Petitioner’s “liberty is illegal and contravenes his 23 Eighth Amendment right against ‘cruel and unusual punishment.’” 24 [Dkt. No. 1 at 17-25, 32-48.] 25 26 27

28 3 Petitioner also faults trial counsel for failing to investigate and call as witnesses 1 II. Discussion 2 Rule 4 of the Rules Governing § 2254 Cases requires the Court to 3 conduct a preliminary review of the Petition. Pursuant to Rule 4, the Court 4 must summarily dismiss a petition “[i]f it plainly appears from the face of the 5 petition . . . that the petitioner is not entitled to relief in the district court.” 6 Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 7 F.2d 490 (9th Cir. 1990). As explained below, a review of the Petition shows 8 that it is subject to dismissal as untimely, and Petitioner therefore must show 9 cause as to why it should not be dismissed. 10 A. The Petition is Untimely on Its Face

11 1. The Limitations Period 12 The AEDPA imposes a one-year period of limitation for state prisoners 13 to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The 14 one-year limitations period runs from the latest of the four following dates: 15 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 16 seeking such review; 17 (B) the date on which the impediment to filing an 18 application created by State action in violation of the 19 Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 20 (C) the date on which the constitutional right asserted was 21 initially recognized by the Supreme Court, if the right has 22 been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 23 (D) the date on which the factual predicate of the claim or 24 claims presented could have been discovered through the 25 exercise of due diligence. 26 28 U.S.C. §§ 2244(d)(1)(A)-(D). The Ninth Circuit has held that “the 27 judgment from which the AEDPA statute of limitations runs is the one 28 pursuant to which the petitioner is incarcerated.” Smith v. Williams, 871 1 F.3d 684, 687 (9th Cir. 2017). 2 Here, the California Supreme Court denied Petitioner’s original petition 3 for review on June 21, 2006. See Cal. App. Cts. Case Info. http:// 4 appellatecases.courtinfo.ca.gov/ (search for Case No. S143404) (last visited 5 May 18, 2023). He did not seek a writ of certiorari in the U.S. Supreme Court. 6 See U.S. Sup. Ct. Docket Search, https://www.supremecourt.gov/docket/ 7 docket.aspx (search for “Dorsey” with “Edward” yielding no relevant results) 8 (last visited May 18, 2023). 9 On July 11, 2014, Petitioner obtained habeas relief in superior court 10 and was resentenced. [See Dkt. No. 1 at 7]; Dorsey II, 2015 WL 6690234, at 11 *1. He did not appeal, see Cal. App. Cts. Case Info. 12 http://appellatecases.courtinfo.ca.gov/ (search for “Dorsey,” “Edward,” and 13 “Dewayne”) (last visited May 18, 2023), and thus his conviction became final 14 60 days later, on September 9, 2014. See Cal. R. Ct. 8.308(a) (notice of appeal 15 must be filed within 60 days of judgment); Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (state conviction and sentence become final when availability of 16 direct appeal has been exhausted and time for filing petition for writ of 17 certiorari has elapsed or timely filed petition has been denied); see also 18 Marquez v. McDaniel, 729 F. App’x 583, 584 (9th Cir. 2018) (“Where an 19 amended or corrected judgment is entered, a prisoner is held under that 20 amended or corrected judgment[,]” and “the one-year [statute of limitations] 21 period runs from the date of the amended judgment.”) (citing Smith v. 22 Williams, 871 F.3d 684, 688 (9th Cir. 2017)).4 Accordingly, the one-year 23 limitation period for seeking federal habeas relief ended a year later, on 24 September 9, 2015. See § 2244(d). 25

26

27 4 Petitioner could not have filed a petition for writ of certiorari concerning his new 28 sentence in the U.S. Supreme Court because he did not appeal to the highest state 1 Petitioner constructively filed the instant Petition over seven years after 2 that deadline, on March 6, 2023. [See Dkt. No. 1 at 141.] He does not contend 3 that he is entitled to a later trigger date of the limitation period under 4 § 2244(d)(1)(B) or (C), and no such basis is apparent to the Court.5 To the 5 contrary, based on his allegations, Petitioner was aware of all of his current 6 claims years before his conviction became final. [See Dkt. No. 1 at 121-24.] 7 Consequently, the present action is untimely unless he is entitled to statutory 8 or equitable tolling of the limitation period. 9 2. Statutory Tolling 10 The one-year limitation period is “statutorily tolled” while a “properly 11 filed application for State post-conviction or other collateral review with 12 respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). 13 The statute is not tolled between the time a final decision is issued on direct 14 review and the time the first state collateral challenge is filed, because there 15 is no case “pending” during that time. See Nino v. Galaza, 183 F.3d 1003, 16 1006 (9th Cir. 1999). However, the statute is tolled for the time during which 17 a state prisoner is attempting, through proper use of state court procedures, 18 to exhaust state court remedies regarding a particular post-conviction 19 application. Once an application for post-conviction review commences, it is 20 “pending” until a petitioner “complete[s] a full round of [state] collateral review.” Delhomme v. Ramirez, 340 F.3d 817, 819 (9th Cir. 2003) (citing 21 Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003)). 22 Here, Petitioner is not entitled to any statutory tolling. In August 2014, 23 he filed a petition to recall his sentence in superior court, which denied it on 24 December 12, [see Dkt. No. 1 at 8], an unsuccessful appeal of that denial, 25 Dorsey II, 2015 WL 6690234, at *1, and a petition for review, which was 26

27 5 Petitioner arguably alleges that he is entitled to a later start date of the limitation 28 period under § 2244(d)(1)(D). [See Dkt. No. 1 at 14.] That allegation is addressed 1 denied on December 16, 2015 [see Dkt. No. 1 at 8]. See Cal. App. Cts. Case 2 Info. http://appellatecases.courtinfo.ca.gov/ (search for “Dorsey,” “Edward,” 3 and “Dewayne”) (last visited May 18, 2023). But a state-court petition for 4 recall is not a post-conviction collateral attack on a state-court judgment 5 because it does not challenge the underlying conviction or sentence; 6 consequently, it does not toll the limitations period unless it results in a new 7 judgment.6 See Johnson v. Neuschmid, No. CV 19-8119-ODW (SP), 2020 WL 8 6219330, at *4 (C.D. Cal. Sept. 1, 2020) (petition for resentencing under Cal. 9 Penal Code § 1170.18 did not attack state-court judgment and thus did not 10 toll limitation period), accepted by 2020 WL 6203569 (C.D. Cal. Oct. 22, 2020). 11 Moreover, neither the 2017 habeas petition that Petitioner filed in 12 superior court [see Dkt. No. 1 at 9] nor the request for hearing under Franklin 13 that he filed in November 2020 (and his subsequent appeals concerning the 14 denial of that request) tolled the limitation period because it had already 15 expired when he filed them. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit the reinitiation of a 16 limitations period that has ended before the state petition was filed.”); Green 17 v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (state habeas petition filed after 18 expiration of AEDPA limitation period could not toll limitation period 19 “because the limitations period had already run”). The same is true 20 concerning the habeas petitions he filed in the court of appeal and the 21 California Supreme Court in 2022. See Cal. App. Cts. Case Info. http:// 22 appellatecases.courtinfo.ca.gov/ (search for “Dorsey,” “Edward,” and 23 24

25 6 In any event, even if Petitioner’s petition for recall and the subsequent appeals concerning the denial of that petition tolled the limitation period, the Petition would 26 nevertheless be untimely because, at a minimum, he filed no petitions of any kind in state court between August 21, 2017, when his second habeas petition in superior 27 court was denied [see Dkt. No. 1 at 9], and November 2020, when he filed a request 28 for a hearing under Franklin [see id. at 9, 121-31]. See Dorsey III, 2021 WL 1 “Dewayne”) (last visited on May 18, 2023). 2 3. Equitable Tolling 3 Petitioner alleges several arguments that, in his view, warrant 4 equitable tolling of the one-year limitation period. First, he argues that he 5 lacked the requisite legal training and knowledge to identify and prosecute 6 the Petition’s claims and was able to do so only after retained counsel alerted 7 him to them in June 2020. [See Dkt. No. 1 at 14, 25-26.] Second, he 8 maintains that neither his appellate counsel nor his post-conviction counsel 9 appointed to assist him in his state-court petition to recall his sentence 10 notified him of the AEDPA one-year limitation period. [See id. at 24-25, 28, 11 46-47.] What’s more, according to Petitioner, neither of his appointed 12 counsels identified any of the “meritorious” claims that he has asserted in the 13 Petition, and thus he had no way to discover them until retained counsel did 14 in June 2020. [Id. at 14, 25-26.] 15 The one-year limitations period is subject to equitable tolling in 16 appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010). “[T]he 17 threshold necessary to trigger equitable tolling is very high, lest the 18 exceptions swallow the rule.” Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 19 2006) (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). To 20 qualify, a petitioner has the burden to demonstrate (1) that he has been pursuing his rights diligently, and (2) that an “extraordinary circumstance” 21 stood in his way that prevented him from timely filing. Holland, 560 U.S. at 22 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). 23 To show “extraordinary circumstances,” a petitioner must show that 24 “the circumstances that caused his delay are both extraordinary and beyond 25 his control” – a high threshold. Menominee Indian Tribe of Wisconsin v. 26 United States, 577 U.S. 250, 255 (2016). In addition, a petitioner must show 27 that the extraordinary circumstances caused the untimely filing of his habeas 28 1 petition. See Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citing 2 Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)); see also Smith v. Davis, 3 953 F.3d 582, 595 (9th Cir. 2020) (“Whether an impediment caused by 4 extraordinary circumstances prevented timely filing is a ‘causation 5 question.’”). 6 To demonstrate that he has been pursuing his rights diligently, a 7 petitioner must show that he has “been reasonably diligent in pursuing his 8 rights not only while an impediment to filing caused by an extraordinary 9 circumstance existed, but before and after as well, up to the time of filing his 10 claim in federal court.” Smith, 953 F.3d at 598-99. In other words, “when 11 [the petitioner] is free from the extraordinary circumstance, he must also be 12 diligent in actively pursuing his rights.” Id. at 599. Because Petitioner must 13 show diligence before, during, and after extraordinary circumstances 14 prevented him from filing, see Smith, 953 F.3d at 598-99, he must show 15 diligence during the period from September 9, 2014, the day the statute of limitations began to run, to until March 6, 2023, the day he constructively 16 filed the Petition. 17 18 Here, none of Petitioner’s allegations warrants equitable tolling of the 19 limitation period. First, that Petitioner lacked training is not sufficient to toll 20 the limitation period. The Ninth Circuit has squarely held that “a pro se 21 petitioner’s lack of legal sophistication is not, by itself, an extraordinary 22 circumstance warranting equitable tolling.” Rasberry v. Garcia, 448 F.3d 23 1150, 1154 (9th Cir. 2006); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 24 n.4 (9th Cir. 2009) (“[W]e have held that a pro se petitioner’s confusion or 25 ignorance of the law is not, itself, a circumstance warranting equitable 26 tolling[.]”) (citation omitted). Petitioner was aware of the facts underlying 27 each of the Petition’s claims no later than August 5, 2005, when appellate 28 counsel filed Petitioner’s opening brief on appeal. [See Dkt. No. 1 at 121-24]; 1 See Cal. App. Cts. Case Info. http://appellatecases.courtinfo.ca.gov/ (search for 2 “Dorsey,” “Edward,” and “Dewayne”) (last visited May 18, 2023). Accordingly, 3 he could have timely asserted those claims in federal court had he exercised 4 reasonable diligence. His failure to do so is not an extraordinary 5 circumstance. 6 Second, that neither of Petitioner’s state-court appointed counsels 7 notified him of the AEDPA one-year limitation period is likewise insufficient 8 to toll the limitations period. See Garcia v. Perez, No. SACV 15-0397-JPR, 9 2016 WL 1028002, at *9 (C.D. Cal. Mar. 14, 2016) (“Even if Petitioner’s 10 untimely filing of his federal Petition is attributable in part to his ignorance of 11 the federal habeas statute and the California postconviction process, ‘a pro se 12 petitioner’s lack of legal sophistication is not, by itself, an extraordinary 13 circumstance warranting equitable tolling.’” (quoting Rasberry, 448 F.3d at 14 1154)); Mezquita v. Soto, No. CV 14-5994-VAP (RNB), 2014 WL 4988145, at 15 *2, *4-5 (C.D. Cal. Sept. 4, 2014) (equitable tolling not warranted when appellate counsel did not provide petitioner notice of AEDPA’s limitation 16 period even though petitioner had slightly-below fifth-grade reading level), 17 accepted by 2014 WL 5017919 (C.D. Cal. Oct. 7, 2014). 18 In short, none of Petitioner’s allegations in the Petition warrant 19 equitable tolling. 20 4. Later Start Date under § 2244(d)(1)(D) 21 Under § 2244(d)(1)(D), the limitations period begins to run from “the 22 date on which the factual predicate of the claim or claims presented could 23 have been discovered through the exercise of due diligence,” not when it was 24 actually discovered. 28 U.S.C. § 2244(d)(1)(D). “Time begins when the 25 prisoner knows (or through diligence could discover) the important facts, not 26 when the prisoner recognizes their legal significance.” Hasan v. Galaza, 254 27 F.3d 1150, 1154 n.3 (9th Cir. 2001). “Due diligence does not require the 28 1 maximum feasible diligence, but it does require reasonable diligence in the 2 circumstances.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) 3 (internal citation and quotation marks omitted). 4 Section 2244(d)(1)(D) provides a petitioner with a later accrual date 5 than section 2244(d)(1)(A) only “‘if vital facts could not have been known’ by 6 the date the appellate process ended.” Id. (citations omitted). Accordingly, 7 “[t]he ‘due diligence’ clock starts ticking when a person knows or through 8 diligence could discover the vital facts, regardless of when their legal 9 significance is actually discovered.” Id. The Ninth Circuit has explained that 10 “section 2244(d)(1)(D)’s due diligence requirement is an objective standard. . . 11 .” Id. Nevertheless, in determining whether a petitioner has exercised due 12 diligence, courts also consider the petitioner’s “particular circumstances.” Id. 13 Courts, therefore, may consider any impediments that the petitioner faced in 14 discovering a claim’s factual predicate. Id. Correspondingly, courts also may 15 consider “unique resources at the petitioner’s disposal to discover his or her claim.” Id. 16 Here, Petitioner is not entitled to a later start date of the AEDPA one- 17 year limitation period. As related above, he was necessarily aware of all the 18 facts underlying the Petition’s claims no later than August 5, 2005, when 19 appellate counsel filed Petitioner’s opening brief on appeal. [See Dkt. No. 1 at 20 121-24]; See Cal. App. Cts. Case Info. http://appellatecases.courtinfo. ca.gov/ 21 (search for “Dorsey,” “Edward,” and “Dewayne”) (last visited May 18, 2023). 22 That he may not have appreciated the legal significance of those facts is 23 insufficient to trigger an alternative start date of the limitations period. See 24 Hasan, 254 F.3d at 1154 n.3. What’s more, Petitioner evidently had resources 25 available to him that many prisoners do not. Indeed, in June 2020, he 26 retained counsel [see Dkt, No. 1 at 14], and he cites no reason why he could 27 not have done so before then. And even if he could, he did not require counsel 28 1 to timely assert any of the Petition’s claims. 2 5. Actual Innocence 3 Petitioner contends that the AEDPA one-year statute of limitations does 4 not bar the Petition because he is actually innocent of the crimes of which he 5 was convicted. [See Dkt. No. 1 at 17-18, 27.] In support of this contention, he 6 presents declarations from two people, one of whom would have provided an 7 alibi for Petitioner, and the other of whom would have testified that he was 8 the person who committed the crimes of which Petitioner was convicted. [See 9 Dkt. No. 1 at 126-31.] The first declaration is from Kisha Woodburn, 10 Petitioner’s ex-girlfriend. [See id. at 30, 129-31.] Woodburn declares that 11 Petitioner could not have committed the crimes underlying his convictions 12 because he was with her in her apartment when the crimes occurred. [See id. 13 at 130-31.] The second declaration is from Donell English, Petitioner’s cousin. 14 [See id. at 15, 126-28.] English declares that he – not Petitioner – was the 15 person who brandished a firearm at the victim. [See id. at 126-27.] Both 16 declarants state that they were willing to testify at Petitioner’s trial, but trial 17 counsel never contacted them. [See id. at 127, 131.] Citing these two 18 declarations, Petitioner posits that the victim necessarily “misidentified” him. 19 [Dkt. No. 1 at 17.] As explained below, Petitioner’s new evidence is not 20 sufficient to render the Petition timely under the fundamental-miscarriage-of- justice exception to the AEDPA one-year limitation period. 21 Under the “fundamental miscarriage of justice” exception to the 22 AEDPA limitation period, a habeas petitioner may pursue constitutional 23 claims on the merits “notwithstanding the existence of a procedural bar to 24 relief.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). The exception is 25 limited to claims of actual innocence, however, and a petitioner does not 26 qualify if he asserts “only procedural violations.” Johnson v. Knowles, 541 27 F.3d 933, 937 (9th Cir. 2008); see Schlup v. Delo, 513 U.S. 298, 321 (1995) 28 1 (observing that Supreme Court precedent has “explicitly tied the miscarriage 2 of justice exception to the petitioner’s innocence”); Herrera v. Collins, 506 U.S. 3 390, 404 (1993) (“This . . . fundamental miscarriage of justice exception [ ] is 4 grounded in the ‘equitable discretion’ of habeas courts to see that federal 5 constitutional errors do not result in the incarceration of innocent persons.” 6 (quoting McCleskey v. Zant, 499 U.S. 467, 502 (1991))). 7 “[A]ctual innocence, if proved, serves as a gateway through which a 8 petitioner may pass whether the impediment is a procedural bar . . . or . . . 9 expiration of the statute of limitations.” Perkins, 569 U.S. at 386; see also Lee 10 v. Lampert, 653 F.3d 929, 934–37 (9th Cir. 2011) (en banc). The Schlup 11 standard is “demanding.” Perkins, 569 U.S. at 386 (citation omitted). “[A] 12 petitioner ‘must show that it is more likely than not that no reasonable juror 13 would have convicted him in the light of the new evidence.’” Id. at 399 14 (quoting Schlup, 513 U.S. at 327); see also Bousley v. United States, 523 U.S. 15 614, 623 (1998) (noting in context of collateral review of federal criminal conviction that actual innocence “means factual innocence, not mere legal 16 insufficiency”). To overcome the statute of limitations, the evidence of actual 17 innocence must be “so strong that a court cannot have confidence in the 18 outcome of the trial unless the court is also satisfied that the trial was free of 19 nonharmless constitutional error.” Schlup, 513 U.S. at 316. The “timing of 20 the petition” asserting actual innocence is a factor relevant to how strong a 21 showing is needed. Perkins, 569 U.S. at 386. The longer a petitioner has 22 delayed, the greater the showing of innocence must be. See id. at 399-400 23 (petitioner’s “untoward delay” in arguing his actual innocence “should 24 seriously undermine [the argument’s] credibility”). 25 “New” evidence is “relevant evidence that was either excluded or 26 unavailable at trial.” Schlup, 513 U.S. at 324, 327-28. This evidence must be 27 “reliable.” Id. at 324. Evidence that is only newly presented – but not 28 1 necessarily newly discovered – may nonetheless suffice to overcome AEDPA’s 2 limitation period. Griffin v. Johnson, 350 F.3d 956, 962-63 (9th Cir. 2003) 3 (allowing otherwise time-barred claim to proceed based on evidence of actual 4 innocence available, but not introduced, at time of trial). But see Chestang v. 5 Sisto, 522 F. App’x 389, 391 (9th Cir. 2013) (newly acquired witness 6 declaration not sufficiently “new” to support actual innocence because 7 contents were within defendant’s knowledge at time of trial and no 8 explanation was given for not introducing it sooner). 9 While the Schlup standard does not require absolute certainty 10 regarding the petitioner’s guilt or innocence, it nevertheless is an “exacting 11 standard” that permits review “only in the ‘extraordinary’ case.” Lee, 653 12 F.3d at 937. Indeed, the Supreme Court has noted that this exception is 13 “rare.” Schlup, 513 U.S. at 321. 14 Here, Petitioner cannot meet Schlup’s exacting standard. First, both 15 Woodburn and English have readily apparent credibility problems. Neither of them is a disinterested witness: Woodburn is Petitioner’s ex-girlfriend, and 16 English is his cousin. See House v. Bell, 547 U.S. 518, 552 (2006) (eyewitness 17 testimony given by disinterested witness with no motive to lie “has more 18 probative value” than “testimony from inmates, suspects, or friends or 19 relations of the accused”); see also Romero v. Tansy, 46 F.3d 1024, 1030 (10th 20 Cir. 1995) (testimony by defendant’s family members is of “significantly less 21 exculpatory value than the testimony of an objective witness”). Putting that 22 aside, Woodburn evidently lied to police who were investigating the 23 underlying crimes. Specifically, when police arrived at her apartment to 24 investigate the victim’s complaint, she told them that Petitioner was not home 25 when in fact he was hiding in her bathroom shower. See Dorsey I, 2006 WL 26 864546, at *1. 27 28 1 English has even more credibility problems. Although his April 2021 2 declaration states that he was the person who brandished the weapon at the 3 victim, he did not sign his declaration until over 15 years after the crimes 4 were committed. [Compare Dkt. No. 1 at 2 (stating that Petitioner was 5 convicted on May 20, 2004), with id. at 128 (reflecting that English signed his 6 declaration in April 2021).] By that time, the statute of limitations on the 7 crimes – both brandishing a firearm and felon in possession of a firearm – had 8 long since passed. See Cal. Penal Code §§ 801 (limitation period for offenses 9 punishable by imprisonment is generally three years), 800 (limitation period 10 for offenses punishable by imprisonment of eight years or more is six years).7 11 Accordingly, English had little if anything to lose in confessing to those crimes 12 in 2021, and thus his confession is inherently suspect. See Williams v. Soto, 13 No. CV 15-1275-MWF (FFM), 2018 WL 2208041, at *23 (C.D. Cal. Feb. 20, 14 2018) (witness’s confession that he committed crime for which petitioner was 15 convicted was inherently suspect because witness did not confess until after limitation period to prosecute him had passed), accepted by 2018 WL 2215977 16 (C.D. Cal. May 10, 2018), denying cert. of appealability, No. 18-55634, 2018 17 WL 6041663 (9th Cir. Sept. 25, 2018); see also Smith v. Baldwin, 510 F.3d 18 1127, 1142 n.11 (9th Cir. 2007 (en banc) (partner-in-crime’s confession that he 19 committed murder of which petitioner was convicted would be unconvincing to 20 jury because jury likely would conclude that partner-in-crime, who was 21 serving life sentence on unrelated crime, was hoping to help petitioner 22 without any personal consequences); Morris v. Hill, 596 F. App’x 590, 591 (9th 23 Cir. 2015) (rejecting actual innocence claim based proposed witness’s 24 confession to crime because witness was serving three life sentences, one of 25 which without possibility of parole, and thus had “nothing to lose by 26

27 7 There is no statute of limitations in California for offenses punishable by life in 28 prison. See Cal. Penal Code § 799. None of the crimes of which Petitioner was 1 confessing”). And although English claims that he wanted to confess all along 2 and was willing to do so at Petitioner’s trial [see Dkt No. 1 at 126-28], he opted 3 not to confess when he and Petitioner were arrested or at any time before 4 being sent to jail on an unrelated crime even though he must have known 5 Petitioner had been charged with the crime or at least was a suspect. That 6 fact, coupled with his having nothing to lose in confessing, render his 7 declaration of little persuasive value in showing Petitioner’s innocence. 8 Second, Petitioner’s unexplained delay in raising any kind of actual- 9 innocence argument undermines it validity. If he were innocent of the 10 charged crimes, he knew that fact since the moment he was arrested, as well 11 as that Woodburn could have provided him an alibi. What’s more, he 12 contends that “[l]ong before the start of [his] trial” in 2004, he knew that 13 English was willing to confess to the crimes. [Dkt. No. 1 at 122.] 14 Notwithstanding those purported facts, he waited until over 16 years after he 15 was convicted to assert his actual-innocence claim.8 [See id. at 14.] That prolonged delay “seriously undermine[s]” the credibility of Petitioner’s 16 protestations of innocence. Perkins, 569 U.S. at 386. 17 Finally, the after-the-fact declarations of Woodburn and English are 18 insufficient to show that no reasonable juror would have convicted Petitioner 19 because of the substantial evidence implicating only Petitioner in the charged 20 crimes. Putting aside Woodburn’s and English’s credibility problems 21 identified above, there was ample evidence of Petitioner’s guilt. Indeed, the 22 victim positively identified him as the person who brandished the firearm. 23

24 8 Petitioner does not cite any state habeas petition in which he asserted his actual- 25 innocence claim. But based on his allegations, he necessarily did not do so until sometime after June 2020. [See Dkt. No. 1 at 14.] As best as the Court can tell, he 26 first raised the claim in the habeas petition he filed in the court of appeal on January 13, 2022. See Cal. App. Cts. Case Info. http://appellatecases.courtinfo. 27 ca.gov/ (search for “Dorsey,” “Edward,” and “Dewayne”) (last visited May 18, 2023). 28 But the Court cannot definitively state that he raised his actual-innocence claim in 1 Dorsey I, 2006 WL 864546, at *1. And when police came to arrest Petitioner, 2 he evidenced a consciousness of guilt by hiding in Woodburn’s shower, while 3 she told police that he was not in the apartment. See id.; see also People v. Vu, 4 143 Cal. App. 4th 1009, 1030 (2006) (evidence that defendant tried to hide 5 after crime is relevant to show consciousness of guilt); People v. Dabb, 32 Cal. 6 2d 491, 500 (1948) (“[A] consciousness of guilt may be inferred from an 7 attempt to avoid apprehension.”). Moreover, once inside Woodburn’s 8 apartment, he changed out of the clothes he had been wearing only moments 9 before when he had confronted the victim. Dorsey I, 2006 WL 864546, at *1. 10 And more importantly, his fingerprints were found on a gun that was hidden 11 in a clothes hamper in Woodburn’s apartment. Id. 12 Put simply, there was substantial evidence of Petitioner’s guilt, and the 13 after-the-fact declarations of two interested witnesses with obvious credibility 14 problems is not sufficient to show a likelihood that no reasonable juror would 15 have convicted Petitioner even after considering them. As such, he cannot show that a fundamental miscarriage of justice would result if the Court were 16 not to consider the merits of the Petition’s claims. 17 In sum, Petitioner has failed to file a federal habeas petition within one 18 year of the date on which the AEDPA’s one-year limitation period began to 19 run. He is not entitled to any statutory tolling (or if he is, it is not sufficient 20 to render the Petition timely), he has not alleged sufficient facts to warrant 21 equitable tolling or a later start date of the limitation period. Nor has he 22 shown that failing to consider the Petition’s claims would result in a 23 fundamental miscarriage of justice. Thus, the Petition is untimely.9 24 25 9 Petitioner also alleges that he has previously filed a habeas petition in this Court 26 that was denied as untimely. [See Dkt. No. 1 at 7.] He fails, however, to provide a case number for that petition or the date on which it was denied. [See id.] The 27 Court moreover has been unable to verify that such a petition was ever filed. To the 28 extent he filed the petition after obtaining habeas relief in the superior court [see 1 || III. Conclusion 2 For the foregoing reasons, the Court ORDERS Petitioner to 3 || show cause by no later than June 30, 2023, as to why the Petition should 4 || not be dismissed as untimely. 5 If he contends that he is entitled to tolling of any kind or a later start 6 || date of the limitation period for any reason other than those identified in the 7 || Petition, he must allege specific facts to support those contentions and provide 8 || any reasonably available supporting documentation. If he continues to 9 || maintain that he is actually innocent, he likewise must allege specific facts in 10 || addition to those alleged in the Petition to support that contention and 11 || provide any reasonably available supporting documentation. 12 Petitioner is admonished that if he does not file a response to this Order 13 || by June 30, 2023, the Court will recommend that the Petition be dismissed 14 || with prejudice as untimely. 15 IT IS SO ORDERED. 16 17 || DATED: May 22, 2023 18 Faluuey Lana □□□ 19 PATRICIA DONAHUE

UNITED STATES MAGISTRATE JUDGE

20 21 22 23 24 Yo because he does not allege that he obtained permission from the Ninth Circuit Court 26 || of Appeals before filing it. See § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 157 7 (2007) (holding district court lacks jurisdiction to consider merits of second or successive petition absent prior authorization from circuit court). The Court, 28 || however, lacks sufficient information at this time to determine if the Petition is in fact second or successive of any prior federal habeas petition. 10