Stewart v. Cate

• Decision Date: 01 November 2013
• Docket Number: No. 10–55985.,10–55985.
• Parties: DeArcey Jamul STEWART, Petitioner–Appellant, v. Matthew L. CATE, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

734 F.3d 995

DeArcey Jamul STEWART, Petitioner–Appellant,

v.Matthew L. CATE, Respondent–Appellee.

No. 10–55985.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Dec. 5, 2012.

Filed Nov. 1, 2013.

Kurt David Hermansen (argued), Law Office of Kurt David Hermansen, San Diego, CA; Jan Stiglitz, Justin Brooks, Alexander Simpson, and Alissa Bjerkhoel, California Innocence Project, San Diego, CA, for Petitioner–Appellant.

Kevin Vienna (argued), Supervising Deputy Attorney General; Kamala D. Harris, Attorney General of California; Dane R. Gillette, Chief Assistant Attorney General; Gary W. Schons, Senior Assistant Attorney General; Raquel M. Gonzalez, Deputy Attorney General, San Diego, CA, for Respondent–Appellee.

Appeal from the United States District Court for the Southern District of California,Barry T. Moskowitz, District Judge, Presiding. D.C. No. 3:05–cv–01059–BTM–CAB.

Before: MARSHA S. BERZON and SANDRA S. IKUTA, Circuit Judges, and JENNIFER G. ZIPPS, District Judge.^*

OPINION

ZIPPS, District Judge:

Appellant DeArcey Jamul Stewart (“Stewart”) appeals from the district court's denial of his 28 U.S.C. § 2254 habeas petition as untimely. Stewart is serving a sentence in state prison of two life terms plus seven years following convictions for attempted murder. After pursuing post-conviction relief in state court, Stewart filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of California. After thorough review, the district court denied Stewart's federal habeas petition as untimely. On appeal, Stewart contends that the district court erred in: (1) concluding that Stewart was not entitled to statutory tolling of his federal statute of limitations under § 2244(d); (2) concluding that Stewart had not established an actual innocence claim; (3) failing to conduct an evidentiary hearing prior to dismissing Stewart's federal habeas petition; and (4) concluding that Stewart's Petition failed to adequately allege a federal claim. We affirm the district court's denial of Stewart's federal habeas petition.

I. BACKGROUND

On September 23, 1995, brothers Mark and Michael Parish were shot by a passenger in a nearby vehicle while driving through an area of San Diego claimed by the Skyline Piru gang, of which Stewart was a member. The Parish brothers identified Stewart as the driver of the vehicle and Richard Lee as the shooter. Stewart and Lee were arrested and charged in the Superior Court of California, County of San Diego. Stewart and Lee were tried jointly and in the spring of 1996 both men were convicted on two counts of attempted murder. ¹ On July 18, 1996, Stewart was sentenced to two life terms and seven years in state prison. The trial court imposed consecutive terms of life with the possibility of parole; Stewart also received a five-year sentencing enhancement based on a prior conviction.

Stewart and Lee both pursued several avenues of post-conviction relief, most of which are not relevant to this appeal. Stewart filed a motion for a new trial and a direct appeal. Both defendants jointly filed a petition for review in the California Supreme Court. On August 31, 2000, as a result of a state petition for writ of habeas corpus filed by Lee and not joined by Stewart, Lee's convictions for attempted murder were vacated. Lee's post-conviction relief was based on new evidence proffered by Darnell Jackson, an informant (now in witness protection) who claimed that Arnold Adkins, not Lee, was the shooter, and that Stewart was the driver of the vehicle from which the Parish brothers' shooting occurred. The state did not oppose Lee's petition, instead conceding that the newly discovered evidence was sufficiently credible to cast doubt on the integrity of Lee's convictions.

Following the vacatur of Lee's convictions, on May 14, 2002, Stewart initiated the post-conviction relief proceedings that form the basis of the pending appeal. On that date, Stewart filed a petition for writ of habeas corpus in the Superior Court of California, County of San Diego (“State Trial Court Petition”),² asserting that newly-discovered evidence proved that Darnell Jackson, not Stewart, was the driver of the vehicle from which the shots were fired. In support of his petition, Stewart submitted declarations from Roy Vinson, Arnold Johnson and Tatiana Daniels. On December 17, 2002, after reviewing the petition, return and traverse, the Superior Court denied the petition without a hearing on the ground that the declarations were not credible. On February 6, 2003, Stewart filed a petition for writ of habeas corpus in the California Court of Appeal (“State Court of Appeal Petition”), claiming: (1) the newly-discovered evidence undermined the entire case of the prosecution; (2) the trial court erred in denying Stewart's petition; (3) Stewart is actually innocent; and (4) because of the newly discovered evidence, insufficient evidence supports Stewart's conviction. On May 23, 2003, the Court of Appeal denied the petition, concluding that the declarations were not conclusive, not credible, and did not make a sufficient showing of Stewart's innocence. On August 31, 2003, Stewart filed a petition for writ of habeas corpus in the California Supreme Court (“State Supreme Court Petition”), raising the same claims presented in his State Court of Appeal Petition. ³ On August 11, 2004, the California Supreme Court summarily denied the petition.

On May 17, 2005, Stewart filed a petition for writ of habeas corpus in the United States District Court, Southern District of California, challenging the California state courts' denial of his petitions for writ of habeas corpus (“ § 2254 Petition”). Stewart's § 2254 Petition presents four claims substantially identical to those made in his state petitions: (1) newly-discovered evidence undermines the entire case of the prosecution; (2) the state court erred in denying Stewart's petition for writ of habeas corpus; (3) Stewart is actually innocent; and (4) because of the newly-discovered evidence, insufficient evidence supports Stewart's conviction.

On February 28, 2008, a magistrate judge issued a Report and Recommendation (“R & R”) recommending that Stewart's § 2254 Petition be dismissed as untimely or, alternatively, be denied because Stewart had not established actual innocence and the remaining claims did not present federal questions. Stewart objected to the R & R; he also filed a Motion for Discovery seeking to compel the State to disclose exculpatory material and an Amended Motion for Leave to Amend the Petition in order to adequately plead the federal basis of his claims.

On May 30, 2008, the district court issued an order declining to adopt the R & R, granting Stewart leave to amend and requiring the State to file a response to Stewart's Motion for Discovery. The district court concluded that the State might possess exculpatory material which could affect the court's timeliness analysis, and that therefore it was appropriate to rule on the Motion for Discovery prior to ruling on the timeliness of the § 2254 Petition. In doing so, the district court noted that Stewart's federal § 2254 Petition was untimely and not subject to statutory or equitable tolling, but that Stewart might avoid dismissal if he could pass through the “actual innocence gateway” of Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In granting Stewart's Motion for Leave to Amend, the district court accepted as filed Stewart's proposed Amended § 2254 Petition, which purported to clarify the federal basis of Stewart's claims.

During the course of briefing on Stewart's Motion for Discovery, the district court conducted an in camera review of all documents upon which the State had relied in electing not to oppose Lee's state court habeas petition, as well as any other material in the State's possession that cast doubt on the Parish brothers' eye-witness identification of Stewart. The district court also expanded the record to include declarations from Stewart; Maurice League, a fellow prisoner and an associate of one of the victims; Richard Lee; and Stewart's attorney. Based on its review of the record, on April 21, 2010, the district court dismissed Stewart's Amended § 2254 Petition as untimely, ⁴ concluding that Stewart had not satisfied the Schlup gateway actual innocence standard. The district court also denied Stewart's request for an evidentiary hearing on his Schlup claim. This appeal followed.

II. STANDARD OF REVIEW

We review de novo the district court's denial of a § 2254 petition on timeliness grounds. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir.2010). Findings of fact made by the district court are reviewed for clear error. Moran v. McDaniel, 80 F.3d 1261, 1268 (9th Cir.1996). The Court accords a presumption of correctness to factual findings made by the state court. Id. The decision by the district court to decline to order an evidentiary hearing is reviewed for abuse of discretion. Roy v. Lampert, 465 F.3d 964, 968 (9th Cir.2006).

III. ANALYSISA. Timeliness of the Petition

28 U.S.C. § 2244(d)(1) identifies four events that potentially trigger the running of AEDPA's one-year statute of limitations.⁵ The limitations period is statutorilytolled, however, during the time that “a properly-filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). The district court applied 28 U.S.C. § 2244(d)(1)(A), (B) and (D) and calculated when the applicable limitations period would run under a variety of factual scenarios. Under most of those scenarios, Stewart's § 2254 Petition was untimely and not entitled to statutory tolling. However, with respect to its calculation under 28 U.S.C. § 2244(d)(1)(D), the district court noted conflicting evidence concerning when Stewart could have discovered the factual predicate of his federal...