(HC) Stringer v. Marshall

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 LONNIE DAVID STRINGER, No. 2:09-cv-2980-KJM-EFB P 12 Petitioner, 13 v. ORDER 14 JOHN MARSHALL, 15 Respondent. — 16 — 17 Petitioner, a state prisoner proceeding with counsel, has filed an application for a 18 writ of habeas corpus under 28 U.S.C. § 2254.1 The matter was referred to a United States 19 Magistrate Judge as provided by 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302. 20 On April 15, 2020, the magistrate judge filed findings and recommendations, 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within fourteen days. Petitioner has filed 23 ///// — 24 — 1 Petitioner has been on parole since January 11, 2018. See Suppl. Br., ECF No. 90, at 5. — 25 — Because he is still subject to the conditions of parole, his habeas petition is not mooted by his 26 release on parole. See Spencer v. Kemna, 523 U.S. 1, 7 (1998) (“An incarcerated convict’s (or a parolee’s) challenge to the validity of his conviction always satisfies the case-or-controversy 27 requirement, because the incarceration (or the restriction imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction and redressable by invalidation of the 28 conviction.”). 1 objections to the findings and recommendations, Objs., ECF No. 95, and respondent has filed a 2 reply, Reply, ECF No. 93. 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Local Rule 304, 4 this court has conducted a de novo review of this case. For the following reasons, the court 5 DECLINES to adopt the findings and recommendations. 6 In determining whether to allow a petitioner to escape the application of the 7 limitations period based on evidence of actual innocence, the court considers the trial record plus 8 new reliable evidence not presented at trial, such as “exculpatory scientific evidence, trustworthy 9 eyewitness accounts, or critical physical evidence[.]” Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 10 2011) (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)). The actual innocence exception may be 11 applied only where “a petition presents evidence of innocence so strong that a court cannot have 12 confidence in the outcome of the trial unless the court is also satisfied that the trial was free of 13 nonharmless constitutional error.” McQuiggin v. Perkins, 569 U.S. 383, 401 (2013). 14 In his objections, counsel for petitioner faults the magistrate judge for considering 15 only the new DNA evidence counsel relied on in his second supplemental petition and none of the 16 evidence petitioner provided in his first supplemental petition. Objs. at 3. Yet counsel concedes 17 that the magistrate judge expressly cautioned him to include everything he wished the court to 18 consider in his second supplemental brief. Id.; see also Findings & Recommendations 19 (“Findings”), ECF No. 93, at 2. Thus, petitioner’s counsel had the opportunity to present all of 20 his evidence and arguments to the court in the second supplemental petition and chose to 21 concentrate on the new DNA evidence only. The court agrees with the magistrate judge that, if 22 the court were to only consider the latest supplemental brief, it must conclude the DNA evidence 23 alone is not sufficient to show actual innocence. 24 However, the evidence petitioner points to in his objections, and in previous briefs, 25 appears to be compelling evidence of third-party culpability, particularly when viewed in 26 conjunction with the new DNA evidence. As explained briefly below, the evidence, along with 27 petitioner’s accompanying arguments and requests, deserve consideration on the merits, 28 ///// 1 particularly given the Ninth Circuit’s remand “for a determination of whether Stringer meets the 2 actual innocence exception[.]” Stringer v. Valenzuela, No. 11-16009 (Oct. 17, 2013, 9th Cir.). 3 In the findings and recommendations of February 11, 2011, the magistrate judge 4 discussed the third-party culpability evidence petitioner references in his objections, in the 5 context of determining the proper limitations period start-date, and concluded petitioner is not 6 entitled to a later start-date based on a newly discovered factual predicate to his claims, under 7 § 2244(d)(1)(D). ECF No. 26 at 4–7. The magistrate judge did not, and apparently has not, 8 considered whether the third-party culpability evidence is sufficient for a showing of actual 9 innocence such that petitioner’s untimely filing should be excused. See Stringer v. Valenzuela, 10 No. 11-16009 (Oct. 17, 2013, 9th Cir.) (citing McQuiggins v. Perkins, 133 S. Ct. 1924 (2013)) 11 (remanding to consider actual innocence exception). 12 If petitioner’s allegations are true, petitioner has been a victim of his counsel’s 13 mistakes at essentially every step of his criminal case: at trial, on appeal and in his original habeas 14 petition, which was not filed before the statutory deadline. See Objs. at 19–21. In the interests of 15 justice, the court declines to penalize petitioner for yet another mistake, this time at the hands of 16 his new habeas counsel,2 who appears to have overlooked the magistrate judge’s directions and 17 failed to include all the evidence supporting petitioner’s actual innocence claim in his latest 18 supplemental brief. See Second Suppl. Br., ECF No. 90. 19 In reply to petitioner’s objections, respondent argues the magistrate judge has 20 already found petitioner’s third-party culpability evidence is “speculative” prior to the Ninth 21 Circuit’s remand. Reply at 2. The court is not persuaded by respondent’s reading of the record. 22 The findings and recommendations that were ultimately the subject of the appeal in this case did 23 not analyze the sufficiency of the evidence. The magistrate judge analyzed some of the evidence 24 in the context of determining the proper limitations period start-date for petitioner’s habeas 25 petition, and found the “discovery” of these new facts did not entitle petitioner to a later start-date 26 ///// — 27 — 28 2 Counsel appears to be retained by petitioner, not appointed by the court. 1 under § 2244(d)(1)(D) for reasons unrelated to the relevance, reliability or speculative nature of 2 the evidence. See ECF No. 26 at 5–6. 3 For these reasons, the court declines to adopt the magistrate judge’s findings and 4 recommendations and REFERS the matter back to the magistrate judge to consider both the 5 Second Supplemental Brief Re Actual Innocence, filed August 15, 2019, ECF No. 90, and the 6 first Supplemental Brief Re Factual Innocence, filed March 10, 2014, ECF No. 45, which was 7 referenced in the second brief, see Second Suppl. Br. at 2–3, 9, as well as the Amended Habeas 8 Petition, ECF Nos. 10–11, given the overlap between the merits of the habeas claim and the 9 “actual innocence” analysis, and any supplemental briefing he deems necessary. 10 For similar reasons, the court also declines to adopt the magistrate judge’s findings 11 and recommendations with respect to petitioner’s request for an order requiring the state to 12 conduct further fingerprint testing. See Findings at 19 n.1 (“[Petitioner] provides no authority 13 under which the court may order such testing.”). The court REFERS the matter back to the 14 magistrate judge to analyze whether petitioner has shown “good cause” warranting such an order, 15 see Rules Governing § 2254 Cases, Rule 6(a), or to explain why the court does not have the 16 power to issue such an order. See Cherrix v. Braxton, 131 F. Supp. 2d 756, 779 (E.D. Va. 2001) 17 (“[T]his Court has the statutory authority to order the Attorney General and the Clerk of the trial 18 court to produce evidence collected in connection with state court proceedings.”). 19 IT IS SO ORDERED. 20 DATED: September 1, 2020. — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —