1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CEDRIC TAYLOR, Case No. 2:22-cv-08708-FMO (JPR) 12 Petitioner, ORDER ACCEPTING FINDINGS AND 13 v. RECOMMENDATIONS OF UNITED

STATES MAGISTRATE JUDGE

14 SEAN MOORE, Warden, 15 Respondent. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other 18 records on file herein, and the Report and Recommendation (“Report”) of the 19 United States Magistrate Judge. (ECF No. 18.) Further, the Court has engaged in a 20 de novo review of those portions of the Report to which objections have been made. 21 22 It is undisputed that the Petition is facially untimely by more than ten 23 months. (Report at 7 and n.4.) The Report concluded that Petitioner failed to 24 satisfy the “actual innocence” exception of Schlup v. Delo, 513 U.S. 298 (1995), 25 and recommended that the Petition be dismissed as untimely. For the following 26 reasons, Petitioner’s Objections to the Report (ECF No. 17) do not warrant a 27 change to the Magistrate Judge’s findings or recommendation. 28 1 Petitioner objects that the Report rejected his evidence as “not new.” 2 (Objections at 6-7.) This objection mischaracterizes the Report, which did not find 3 that Petitioner’s evidence was “not new” in its entirety. (Report at 11.) Instead, the 4 Report found that the jury had already heard evidence that Petitioner was not the 5 primary account holder for the phone number at the time of the crime. (Id.) The 6 Report reasonably found that this circumstance made it less likely that information 7 from the investigative reports, describing other users of the phone number, would 8 have had a significant impact on the jury. See Lee v. Lampert, 653 F.3d 929, 944- 9 45 (9th Cir. 2011) (holding that evidence of actual innocence failed to satisfy the 10 Schlup standard where, in part, it was similar to evidence that the jury heard at the 11 trial). 12 Petitioner further objects that the Report assessed the credibility of the new 13 evidence without first holding an evidentiary hearing. (Objections at 7, 9-10.) To 14 the contrary, “the Court is not required to test the new evidence by a standard 15 appropriate for deciding a motion for summary judgment. . . . Instead, the court 16 may consider how the timing of the submission and the likely credibility of the 17 affiants bear on the probable reliability of that evidence.” Schlup, 513 U.S. at 332 18 (internal citations omitted). Moreover, a federal court is not required to hold an 19 evidentiary hearing if it assumes the new evidence is “credible” but ultimately 20 concludes that it “did not adequately support [Petitioner’s] actual innocence claim.” 21 Stewart v. Cate, 757 F.3d 929, 942 (9th Cir. 2014). Here, even assuming that the 22 two investigative reports were credible, they would not adequately support 23 Petitioner’s actual innocence claim. The investigative reports say nothing about 24 who possessed the phone in late April 2010, when the crime occurred. (Report at 25 14). 26 Petitioner further objects that the Report applied the wrong legal standard of 27 actual innocence. (Objections at 8.) A gateway claim of actual innocence (which is 28 being asserted here to overcome an untimeliness bar) requires less convincing proof 1 than a freestanding claim of actual innocence. House v. Bell, 547 U.S. 518, 555 2 (2006); Schlup, 513 U.S. at 316. Contrary to Petitioner’s objection, the Report did 3 not apply the wrong legal standard. The applicable standard requires new evidence 4 that “casts doubt on the conviction by undercutting the reliability of the proof of 5 guilt, but not . . . affirmatively proving innocence[.]” Sistrunk v. Armenakis, 292 6 F.3d 669, 673 (9th Cir. 2002) (en banc). Based on the Report’s analysis, 7 Petitioner’s new evidence did not undercut the reliability of the proof of guilt. 8 (Report at 11-16.) Notably, the new evidence said nothing about who possessed the 9 phone in late April 2010, when the crime occurred. (Id. at 14.) 10 Petitioner further objects that the Report unreasonably found he was not 11 diligent in presenting the new evidence. (Objections at 9.) The Report found that 12 Petitioner’s delay of three or more years in presenting the new evidence to the state 13 courts weighed heavily against its credibility. (Report at 15.) Petitioner points out 14 that only one year elapsed between his direct appeal and the state habeas 15 proceeding in which he presented the new evidence, and that the COVID-19 16 pandemic delayed the investigation. (Objections at 9.) It was not unreasonable, 17 however, for the Report to measure the delay from the three-year period from the 18 time of Petitioner’s trial in 2017 to the time of his state habeas proceeding in 2020. 19 See Chestang v. Sisto, 522 F. App’x 389, 391 (9th Cir. 2013) (measuring delay 20 from when the events “were within [petitioner’s] knowledge”). In any event, the 21 Report considered the delay “not discretely, but as part of the assessment whether 22 actual innocence has been convincingly shown[.]” McQuiggin v. Perkins, 569 U.S. 23 383, 399 (2013). As part of that complete assessment, the Report did not rely 24 solely on delay, but cited several other reasons why actual innocence had not been 25 shown: the jury already knew that Petitioner was not the account holder, the new 26 evidence was not reliable, the new evidence pointed to a possible user who had 27 died, and the new evidence was silent about who used the phone at the time of the 28 crime. (Report at 11-15.) 1 Finally, Petitioner objects that, during an evidentiary hearing, his “friends 2 and common law wife would testify under oath as to the fact that [Petitioner] never 3 possessed the relevant phone.” (Objections at 9-10.) But Petitioner has failed to 4 submit evidence from these witnesses, explain why they were unable to testify at 5 trial, or even identify who they are. An evidentiary hearing is unwarranted under 6 these circumstances. See Bannister v. Delo, 100 F.3d 610, 617 (8th Cir. 1996) 7 (rejecting argument that an evidentiary hearing is necessary “to enable the 8 petitioner to develop evidence” and recognizing that “it is the petitioner’s, not the 9 court’s, burden to support his allegations of actual innocence by presenting new 10 reliable evidence of his innocence) (emphasis in original, citation omitted). 11 Based on the foregoing, IT IS ORDERED that (1) the Report and 12 Recommendation of the Magistrate Judge is accepted and adopted; (2) 13 Respondent’s Motion to Dismiss (ECF No. 9) is granted; and (3) Judgment shall be 14 entered denying the Petition as untimely and dismissing this action with prejudice. 15 Dated this 21st day of July, 2023 16 17 ______________/s/__________________ 18 FERNANDO M. OLGUIN

UNITED STATES DISTRICT JUDGE

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