Lisker v. Knowles

• Decision Date: 10 October 2006
• Docket Number: No. CV 04 02687 VAP(RZ).,CV 04 02687 VAP(RZ).
• Court: U.S. District Court — Central District of California
• Parties: Bruce E. LISKER, Petitioner, v. Michael KNOWLES, Warden, Respondent.

463 F.Supp.2d 1008

Bruce E. LISKER, Petitioner, v. Michael KNOWLES, Warden, Respondent.

No. CV 04 02687 VAP(RZ).

United States District Court, C.D. California.

October 10, 2006.

Vicki I. Podberesky, William J. Genego, Nasatir Hirsch Podberesky and Genego, Santa Monica, CA, for Petitioner.

Robert D. Breton, Office of Attorney General of California, Los Angeles, CA, for Respondent.

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

PHILLIPS, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition, records on file, and the Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Respondent has objected. Petitioner has not filed any written objections to the Report. The Court accepts the Magistrate Judge's Report and adopts it as its own findings and conclusions. The motion to dismiss is denied, and the matter is referred back to the Magistrate Judge for further proceedings.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ZAREFSKY, United States Magistrate Judge.

Pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California, the undersigned submits this Report and Recommendation to the Honorable Virginia A. Phillips, United States District Judge.

In 1985, Petitioner Bruce E. Lisker was convicted in state court of murdering his mother. In 2004, he filed the present action, seeking a federal writ of habeas corpus. Respondent has moved to dismiss, arguing that the one year statute of limitations bars the action. See 28 U.S.C. § 2244(d). Petitioner counters that barring the action would work a miscarriage of justice under the theory of Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). The Court of Appeals has instructed courts to fully develop the factual record when faced with a credible claim of innocence. Majoy v. Roe, 296 F.3d 770 (9th Cir.2002). After holding an extensive evidentiary hearing, the undersigned recommends that the Court deny the motion to dismiss.

I. SUMMARY OF THE CASE AGAINST PETITIONER

A. The Crime

At 11:26 a.m. on March 10, 1983, Petitioner telephoned paramedics to report that his mother, Dorka Lisker, had been stabbed. The paramedics arrived shortly thereafter and administered emergency care, then transported Mrs. Lisker to the hospital. There she died around 3:00 that afternoon.

Mrs. Lisker had been stabbed multiple times, more than twice in the back, with two knives which were recovered at the house. Also at the scene were a trophy and an exercise bar, known by its brand name as a "Bullworker." Police suspected both were used to bludgeon Mrs. Lisker, who had extensive injuries to her head and one arm. Mrs. Lisker had a rope loosely on her neck, but it did not appear that she had been strangled.

Los Angeles Police transported Petitioner to jail where Detective Andrew Monsue interviewed him at length. Petitioner was seventeen years old at the time. He told police that, from outside the house through the back windows, he saw his mother lying on the floor in the front entryway. Detective Monsue did not believe this or other aspects of Petitioner's account. Detective Monsue also eventually determined that all the bloody shoe prints found inside the house and shoe impressions in the dirt outside the house were made by shoes similar to the Pacer brand of shoes Petitioner wore. Petitioner had a small amount of blood on him but not enough, according to police, to support his statement that he hugged and cradled his dying mother. Police knew that Petitioner had moved cut of his parents' house, that Petitioner and his parents argued frequently, and that money was missing from Mrs. Lisker's purse. Police found no sign of forced entry beyond the kitchen window louvers removed by Petitioner, and found no indication that anyone besides Petitioner and his mother had been present inside the house. Soon after the interview with Detective Monsue, Petitioner was charged with murder.

Petitioner continued to assert his innocence to police, telling Detective Monsue that he believed the actual killer was `another juvenile named Michael Ryan. Detective Monsue investigated Ryan's possible involvement and traveled to Mississippi to interview Ryan. Monsue's notes state that Ryan was "convincingly cleared" by further investigation. The case against Petitioner went forward.

B. The Proceedings

Petitioner's murder trial began in November 1984, but was aborted on December 4, 1984, when Petitioner agreed to plead guilty conditioned on his being placed in the California Youth Authority. Such placement would have meant that Petitioner could not be held beyond his 25th birthday. State officials determined, however, that Petitioner was not amenable for such placement and, the condition to the plea having failed, Petitioner withdrew his guilty plea.

Trial began anew in October 1985. At the close of the prosecution case, the defense successfully moved to dismiss the first degree murder charge. The jury convicted Petitioner of second degree murder on November 21, 1985, and the court sentenced Petitioner to 16 years to life in state prison. (Clerk's Transcript ("CT") 368, 378-79; Reporter's Transcript ("RT") 1221-23, 1237.) The California Court of Appeal affirmed Petitioner's conviction on December 22, 1988. (Motion to Dismiss, Exh. B.) The California Supreme Court denied habeas relief on April 25, 1989. (Motion to Dismiss, Exhs. F, G.)

Petitioner again sought collateral review in State court fourteen years later. On January 31, 2003, he signed a petition for writ of habeas corpus which then was fled in the Los Angeles County Superior Court; that court denied the petition on March 6, 2003. (Motion to Dismiss, Exhs. H, I.) On July 28, 2003, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal which the court denied on August 5, 2003. (Motion to Dismiss, Exhs. J, K.) In both of these state court petitions, Petitioner argued that his delay in raising the claims therein should be excused under California's "fundamental miscarriage of justice" exception. (See Motion to Dismiss, Exhs. H at 127-28, J at 238-40.) See In re Clark, 5 Cal.4th 750, 797, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993) (a petition's untimeliness may be excused where a petitioner presents facts, showing that an error of constitutional magnitude led to a trial so unfair that absent the error, no reasonable juror could have convicted the petitioner). In denying the petitions, the trial and appellate courts did not rule them untimely. On August 18, 2003, Petitioner filed a petition for review in the California Supreme Court which that court denied without comment on October 29, 2003. (Motion to Dismiss, Exhs. M, at 304.) Justices Werdeger and Kennard stated that the petition should have been granted. (See Motion to Dismiss, Exh. M at 304.)

On April 16, 2004, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254, initiating the present action. Petitioner filed his First Amended Petition, deleting an unexhausted and noncognizable claim, on May 12, 2004. After Respondent moved to dismiss the action and the matter was briefed fully, the Court held its evidentiary hearing over seven days from December 1 to December 9, 2005. Having reviewed the testimony from the hearing, the exhibits before the Court, and the proceedings in Petitioner's trial, and having considered the written and oral arguments of the parties, the Court now recommends that the motion to dismiss be, denied.

II. THE TIMELINESS OF THE ACTION

In enacting the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996, Congress imposed a statute of limitations on habeas petitions which provides:

(d)(1) 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. The limitation period shall run from the latest of

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

Petitioner's conviction became final in 1989, well before the enactment of the AEDPA. Therefore, the one-year limitatations period started running against Petitioner on the date of the AEDPA's enactment, April 24, 1996. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had until April 24, 1997 to timely file a federal petition.

Petitioner suggests that he is entitled to equitable tolling because the attorneys who represented him between 1996 and 2001 performed deficiently or committed misconduct. (See Opposition to Motion to Dismiss, at 39-45.) Like all circuits which have considered the issue, the Ninth Circuit has held that AEDPA's limitations period is not jurisdictional and therefore is subject to tolling. Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002). A diligent petitioner may be entitled to equitable tolling...