Ford v. Gonzalez

Citation12 Cal. Daily Op. Serv. 7553,683 F.3d 1230,2012 Daily Journal D.A.R. 9242
Decision Date02 July 2012
Docket NumberNo. 11–15430.,11–15430.
PartiesJeffrey Dean FORD, Petitioner–Appellant, v. Fernando GONZALEZ, Respondent–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

OPINION TEXT STARTS HERE

Marylou Hillberg, Sebastopol, CA, for the petitioner-appellant.

Kamala D. Harris, Michael P. Farrell, Brian G. Smiley, Jeffrey Grant, California Department of Justice, Sacramento, CA, for the respondent-appellee.

Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, Senior District Judge, Presiding. D.C. No. 2:05–cv–00944–LKK–GGH.

Before: JOHN T. NOONAN, JR., M. MARGARET McKEOWN, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge NOONAN.

OPINION

M. SMITH, Circuit Judge:

PetitionerAppellant Jeffrey Dean Ford (Ford), a California state prisoner, appeals from the district court's dismissal as untimely of three claims in his petition for a writ of habeas corpus, under 28 U.S.C. § 2254. Ford argues that his claims are timely because the prosecutor withheld evidence that Constance Goins (Goins), a witness for the prosecution at his trial, received lenient treatment in her own criminal cases in return for testifying against him. We hold that Ford is not entitled to delayed commencement of the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. §§ 2241 et seq., because the factual predicate of his claims could have been discovered had he exercised due diligence at his trial. We also hold that Ford is not entitled to equitable tolling because he did not exercise reasonable diligence, and no extraordinary circumstance prevented the timely filing of his claims. Accordingly, we affirm the district court's dismissal of his habeas claims as time-barred.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2000, Detective Danny Minter (Detective Minter) of the Sacramento Sheriff's Department was investigating a series of bank robberies. Detective Minter met with Goins, who was in police custody on unrelated drug charges, at her request. She said that Ford had admitted to her that he was addicted to robbing banks and that he had robbed multiple U.S. Bank branches. Detective Minter told her that once he confirmed what she told him, he would contact the deputy district attorney prosecuting her case. Nevertheless, Goins was released from jail before the information she provided was confirmed. Detective Minter investigated what Goins told him and arrested Ford. Ford was charged with robbing six banks, including three U.S. Bank branches.

At Ford's trial, Goins testified for the prosecution. Witnesses offered different accounts about whether Goins had sought or received benefits for cooperating with law enforcement. Goins denied providing information to law enforcement to get out of jail. However, Detective Minter testified that Goins “said that she wanted to go home, and she had family members she needed to be home to take care of.” He also testified that she got out [of jail] right after we talked to her,” although he denied having anything to do with her release. Throughout the closing argument, the prosecutor repeatedly said that Goins spoke with Detective Minter because she wanted to be released.

After Ford was arrested, Beverly Ford, who is Goins's sister and Ford's wife, began living in the same house as Goins and their mother. During the trial, Beverly Ford pressured Goins to help Ford and took an active interest in Ford's case. Beverly Ford testified that a few weeks before trial, Goins was found in possession of drugs by a police detective, but was not arrested. During Ford's trial, the prosecutor reported to the court while Ford was present that a warrant was issued for Goins's arrest. Defense counsel asked the trial court whether he could use the information “to argue to this jury that [Goins] did what she did because she was expecting a deal from the DA's office,” and gave an example of law enforcement taking “dope from her” but “cut[ting] her some slack.” After the prosecutor reported that there was no deal by law enforcement to delay Goins's arrest warrant in exchange for her testimony and that the warrant was issued by a different judge because Goins had failed to appear on an unrelated court date, defense counsel did not pursue the issue.

The jury found Ford guilty of two counts of robbery. After the trial, Beverly Ford drafted a note in which Goins recanted her testimony, for Goins to copy. Beverly Ford then transported Goins to a notary so she could sign the note. Nevertheless, at a later hearing on Ford's motion for a new trial, despite Beverly Ford's insistence that she say otherwise, Goins maintained that she had been truthful at trial, and that her recantation in the notarized note was false. The California Court of Appeal affirmed Ford's convictions. On May 12, 2004, the California Supreme Court denied Ford's petition for review.

On May 13, 2005, Ford filed his original petition for a writ of habeas corpus in the United States District Court for the Eastern District of California, based on the introduction of certain evidence (unrelated to Goins's testimony) at his trial. In November 2005, Ford's appointed counsel requested all of Goins's criminal files. Counsel received the files and reviewed them in January 2006. These files allegedly revealed that Goins had received favorable dispositions of her own criminal cases before and during Ford's trial.

On February 16, 2006, Ford filed an amended habeas petition seeking to add claims based on his counsel's examination of Goins's case files. The amended petition included the original grounds for relief in the first claim and added four new, unexhausted claims. In his second claim, Ford alleged that the prosecutor failed to disclose material, exculpatory evidence of benefits that Goins received for cooperating with law enforcement. The third claim stated that Ford's right to effective assistance of counsel was violated because his trial counsel failed to investigate favors Goins received in exchange for her testimony. Ford's fourth claim asserted that the prosecutor intentionally or recklessly introduced Goins's false, misleading, and perjurious testimony. The fifth claim contended that Ford's confinement was unlawful because of his actual innocence.

On August 23, 2006, the district court stayed and closed the case pending exhaustion of Ford's claims. The California Supreme Court denied Ford's state habeas petition on February 11, 2009.

On March 6, 2009, Ford notified the district court of the California Supreme Court's decision and requested that the court lift the stay. The same day, Ford filed a second amended petition that included the same claims as the first petition, but included additional facts in support of Ford's fifth claim.

On March 17, 2009, the magistrate judge lifted the stay. RespondentAppellee Fernando Gonzalez moved to dismiss claims 2 through 5 as time-barred. The district judge adopted the magistrate judge's recommendation as to claims 2, 3, and 4, and dismissed these claims as untimely. In the same order, the district judge dismissed claim 5 on the merits.

After the district judge dismissed Ford's remaining habeas claim, Ford filed a timely notice of appeal to our court. SeeFed. R.App. P. 4(a)(5)(A).

STANDARD OF REVIEW AND JURISDICTION

“The dismissal of a petition for writ of habeas corpus as time-barred is reviewed de novo.” Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir.2010) (quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003)). “If the facts underlying a claim for equitable tolling are undisputed, the question of whether the statute of limitations should be equitably tolled is also reviewed de novo.” Id. (quoting Spitsyn, 345 F.3d at 799). “Otherwise, findings of fact made by the district court are to be reviewed for clear error.” Id. (quoting Spitsyn, 345 F.3d at 799).

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c).

DISCUSSION

Under AEDPA, [a] 1–year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) ‘contain[s] multiple provisions relating to the events that trigger its running.’ Lee v. Lampert, 653 F.3d 929, 933 (9th Cir.2011) (en banc) (quoting Holland v. Florida, ––– U.S. ––––, 130 S.Ct. 2549, 2561, 177 L.Ed.2d 130 (2010)) (alteration in original). “The triggering events are the dates on which: direct review becomes final, an unlawful state-created impediment to filing is removed,a new constitutional right is made retroactively available, or the factual predicate of the claim(s) presented could have been discovered with ‘due diligence.’ Id. (quoting 28 U.S.C. § 2244(d)(1)(A)-(D)). The one-year statute of limitations begins running from the latest of those dates. See28 U.S.C. § 2244(d)(1); Hasan v. Galaza, 254 F.3d 1150, 1153 (9th Cir.2001). Equitable tolling may also apply in appropriate circumstances. See Holland, 130 S.Ct. at 2554.

On appeal, Ford challenges the dismissal of claims 2, 3, and 4 as untimely. He argues that he is entitled to delayed commencement of the statute of limitations because the factual predicate of his claims could not have been discovered until his present counsel received Goins's case files in January 2006.1 He also argues that he is entitled to equitable tolling.

A. Start Date of Statute of Limitations

The statute of limitations begins to run under § 2244(d)(1)(D) when the factual predicate of a claim “could have been discovered through the exercise of due diligence,” not when it actually was discovered. 28 U.S.C. § 2244(d)(1)(D) (emphasis added); accord Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir.2004). “Due diligence does not require ‘the maximum feasible diligence,’ but it does require reasonable diligence in the...

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