(HC) Licciardi v. Johnson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT LOUIS LICCIARDI, Case No. 2:22-cv-00265-KJM-JDP (HC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT RESPONDENT’S MOTION TO 13 v. DISMISS BE GRANTED 14 JOHNSON, ECF No. 11 15 Defendant. OBJECTIONS DUE IN FOURTEEN DAYS 16 ORDER DENYING PETITIONER’S MOTION FOR AN EVIDENTIARY HEARING 17 ECF No. 16 18 19 Petitioner, proceeding without counsel, seeks a writ of habeas corpus under 20 28 U.S.C. § 2254. Respondent moves to dismiss arguing that petitioner’s claim is untimely. I 21 agree that petitioner’s claim is time-barred and not subject to tolling. Accordingly, I recommend 22 that his petition be dismissed. 23 No habeas rule specifically applies to motions to dismiss. See Hillery v. Pulley, 533 F. 24 Supp. 1189, 1194 (E.D. Cal. 1982) (“Motion practice in habeas corpus is not specifically 25 provided for in the rules but must be inferred from their structure and the Advisory Committee 26 Notes.”). Following an approach taken by other courts in this district, I conclude that Rule 4 of 27 the Rules Governing Section 2254 Cases is the proper analytical framework for a motion to 28 dismiss a habeas corpus claim. See, e.g., Ram v. Sacramento Cty., No. 2:15-cv-2074-WBS-DB 1 (P), 2017 WL 2403701, at *4 (E.D. Cal. June 2, 2017), aff’d, Ram v. Cty. of Sacramento, 738 F. 2 App’x 571 (9th Cir. 2018). Under Rule 4, I evaluate whether it “plainly appears” that the 3 petitioner is not entitled to relief and, if so, recommend dismissal. 4 A. Timeliness of the Petition 5 Petitioner was convicted in 1995, and direct review of that conviction was finalized in 6 August of 1997. ECF Nos. 13-1, 13-2, & 13-3. In February 2018, he obtained a new DNA 7 report, which he used to mount a new challenge to his conviction. ECF No. 1 at 30-34. Petitioner 8 filed three state habeas petitions based on this report. The first was filed on June 5, 2020, and 9 denied on April 14, 2021. ECF Nos. 13-5 & 13-6. The second was filed on April 30, 2020, and 10 denied on September 15, 2021. ECF Nos. 13-7 & 13-8. The third and final petition was filed on 11 September 21, 2021, and denied on December 22, 2021. ECF Nos. 13-9 & 13-10. The instant 12 federal petition was filed on February 10, 2022. ECF No. 1. 13 Based on the foregoing timeline, respondent contends that the petition is untimely, and I 14 agree. The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) contains a one-year 15 statute of limitations for filing federal habeas claims. 28 U.S.C. § 2244(d)(1)(A). Time typically 16 runs from the date a petitioner’s conviction is finalized, but here it runs from the date on which 17 the new DNA evidence was received and the factual predicate of the immediate claims was 18 discovered. 28 U.S.C. § 2244(d)(1)(D); Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 19 2001) (citing Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)) (“Time begins when the prisoner 20 knows (or through diligence could discover) the important facts, not when the prisoner recognizes 21 their legal significance.”). Given that petitioner received the DNA evidence on February 28, 22 2018, he had until February 28, 2019, to file his federal petition, minus any tolling for properly 23 filed petitions. 24 As noted above, the first petition was filed on June 5, 2020, well after the statute of 25 limitations had expired. For his part, petitioner contends that there was an earlier filed petition 26 that he filed pro se and that was dismissed by the state court because he was represented by an 27 attorney at that time. ECF No. 16 at 3. That petition was filed on January 25, 2019, but, given its 28 dismissal, it was not properly filed and so did not toll the limitations period. Moreover, the 1 petition was filed on January 25, 2019, and dismissed nine days later, on February 4, 2019. ECF 2 No. 19-2. These nine days would not result in sufficient tolling to render the petition timely. 3 B. Actual Innocence 4 Petitioner alleges that the Schlup actual innocence exception permits his petition to be 5 excepted from the statute of limitations bar. The statute of limitations period established by the 6 AEDPA is excused if a petitioner makes a credible showing of “actual innocence.” Lee v. 7 Lampert, 653 F.3d 929, 931 (9th Cir. 2011); Schlup v. Delo, 513 U.S. 298 (1995). However, 8 “habeas corpus petitions that advance a substantial claim of actual innocence are extremely rare.” 9 Schlup, 513 U.S. at 321. To show actual innocence, petitioner must provide sufficient new 10 evidence to demonstrate that “it is more likely than not that no reasonable juror would have 11 convicted him in light of the new evidence.” Lee, 653 F.3d at 938 (quoting Schlup, 513 U.S. at 12 327). Petitioner must demonstrate factual innocence and “not mere legal insufficiency.” Bousley 13 v. United States, 523 U.S. 614, 623 (1998). 14 By way of background, petitioner was convicted of the first-degree murder of his father 15 for financial gain. ECF No. 13-2 at 1. Post-conviction testing revealed that a bloody shirt that 16 was offered into evidence at trial by the prosecution did not contain the DNA of either petitioner 17 or the victim. ECF No. 13-6 at 1-2. Petitioner also contends that: (1) an alibi witness placed him 18 elsewhere on the date of the murder; (2) that DNA evidence on the murder weapon points to 19 somebody other than him; and (3) that ballistics evidence cuts against his guilt. None of these 20 claims makes a credible showing of actual innocence. 21 As to the shirt, there is no question that it was false evidence. ECF No. 13-6 at 2 (noting 22 that respondent conceded that it was false). As the state court reasonably found, however, it was 23 not essential to the prosecution’s case. The prosecution’s strategy relied on showing that 24 petitioner had motive to kill his father and a close connection to the gun used in the murder. Id. 25 Further, given that there was no evidence of burglary, the prosecution posited that it was likely 26 that the victim was killed by someone he knew. Id. None of these strategies relied on the shirt. 27 The shirt was relevant only to the prosecution’s point that numerous factors made it appear that 28 the crime scene had been staged after the murder. As the state court found, the bloody shirt was 1 far from the only piece of evidence pointing to the crime scene’s staging. Id. at 2-3. Thus, even 2 if the shirt was false evidence, a reasonable juror could still have voted to convict petitioner. 3 Petitioner’s other three theories fare no better. Petitioner’s alibi evidence relies on the 4 statement of Annette Licciardi, who put him in bed with her at the time of the murder. ECF No. 1 5 at 36. This evidence is not new; it was known to petitioner, the prosecution, and the court at the 6 time of the trial and so cannot establish actual innocence. Id. at 39 (The alibi witness gave 7 statements about petitioner being with her to the district attorney’s office during a polygraph 8 examination; the trial court barred petitioner from introducing these alibi statements at trial.). 9 And the lack of petitioner’s DNA evidence on the weapon is hardly conclusive of his innocence. 10 As respondent points out, numerous individuals handled the gun between the murder and when it 11 was tested for DNA evidence in 2018. ECF No. 19 at 7-8. Thus, the lack of petitioner’s DNA on 12 the weapon is not a strong indicator of his actual innocence. Finally, petitioner’s claims based on 13 the ballistics report also fail because that report was available at the time of trial and, thus, is not 14 new evidence. 15 Having determined that the petition is untimely and that petitioner has failed to make a 16 showing of actual innocence, it is ORDERED that his motion for an evidentiary hearing, ECF No. 17 16, is denied. 18 Further, it is RECOMMENDED that respondent’s motion to dismiss, ECF No. 11, be 19 GRANTED and the petition, ECF No. 1, be DISMISSED without leave to amend as time barred. 20 These findings and recommendations are submitted to the U.S. District Court Judge 21 presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 22 Practice for the United States District Court, Eastern District of California. Within fourteen days 23 of service of the findings and recommendations, petitioner may file written objections to the 24 findings and recommendations with the court and serve a copy on all parties. That document 25 must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 26 District Judge will then review the findings and recommendations under 28 U.S.C. 27 § 636(b)(1)(C). 28 1 > IT IS SO ORDERED. 3 ( | { Wine Dated: _ December 6, 2022 Q_—_—. 4 JEREMY D. PETERSON 5 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28