Sirhan v. Galaza

• Decision Date: 05 January 2015
• Docket Number: Case No. CV 00–05686 BRO AJWx.
• Citation: 76 F.Supp.3d 1073
• Parties: SIRHAN B. Sirhan, Plaintiff, v. George GALAZA et al., Defendant.
• Court: U.S. District Court — Central District of California

76 F.Supp.3d 1073

SIRHAN B. Sirhan, Plaintiff

v.George GALAZA et al., Defendant.

Case No. CV 00–05686 BRO AJWx.

United States District Court, C.D. California.

Signed Jan. 5, 2015.

Adrian Stuart Williams, Linder Yankelevitz, Los Angeles, CA, Laurie Dusek, Laurie D. Dusek Law Office, Rego Park, NY, William F. Pepper, William F. Pepper Law Office, New York, NY, for Plaintiff.

Jaime L. Fuster, Kenneth N. Sokoler, CAAG–Office of the Attorney General, Los Angeles, CA, for Defendant.

ORDER RE: ACCEPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE AND DENYING PETITION FOR WRIT OF HABEAS CORPUS

BEVERLY REID O'CONNELL, District Judge.

I.INTRODUCTION

“This case may be the final chapter in an American tragedy.”(Dkt. No. 215at 1.)PetitionerSirhan B. Sirhan asks this Court to sustain his objections to the Magistrate Judge's Report and Recommendations filed in his case and hold an evidentiary hearing based upon his claim of actual innocence.This Court conducted a de novo review of Petitioner's objections.As explained below, Petitioner has failed to meet his burden of establishing actual innocence.Likewise, Petitioner has failed to demonstrate that he falls within the narrow exception warranting an evidentiary hearing at this stage.Accordingly, Petitioner's objections are hereby OVERRULED.

II.PROCEDURAL HISTORY

On May 25, 2000, Sirhan B. Sirhan(“Petitioner”) filed a habeas corpus petition in the United States District Court for the Central District of California, Western Division.(Dkt. No. 1.)The matter was assigned to Magistrate Judge Andrew J. Wistrich.(Dkt. No. 2.)On August 18, 2000, District JudgeConsuelo B. Marshall denied Petitioner's motion to recuse all district and magistrate judges in the Central District of California.(Dkt. No. 13.)On November 30, 2000, Judge Marshall denied Petitioner's motion for reconsideration.(Dkt. No. 24.)Judge Marshall then denied Petitioner's motion for certification to file an interlocutory appeal on March 28, 2001, and the United States Court of Appeals denied Petitioner's request for a writ of mandamus on May 20, 2001.(Dkt. Nos. 37, 47.)

On December 6, 2001, in accordance with extended time granted during the course of Petitioner's recusal action, Respondents supplemented their answer to Petitioner's habeas petition, arguing that the petition was barred as untimely based upon Petitioner's habeas petition denied by the California Supreme Court in 1997.(Dkt. No. 38.)Judge Wistrich granted Petitioner extensions of time to respond until July 14, 2003.(Dkt. No. 55.)

On June 18, 2003, Petitioner moved to recuse Judge Wistrich or to transfer the case to the Eastern District of California.(Dkt. No. 56.)District JudgeChristina A. Snyder granted Petitioner extensions of time and denied Petitioner's motion for recusal or transfer on July 7, 2004.(Dkt. No. 81.)On February 16, 2005, Judge Snyder denied Petitioner's motion for reconsideration.(Dkt. No. 91.)

On August 4, 2005, the Court received notice that Petitioner's counsel was deceased.(Dkt. No. 96.)Judge Wistrich granted extensions of time until 2007, in consideration of Petitioner's new counsel.(Dkt. No. 102.)

On March 13, 2007, Respondents filed a motion to dismissPetitioner's federal habeas petition based on the timeliness argument advanced in Respondents' 2001 supplemental answer.(Dkt. No. 106.)On June 21, 2007, Petitioner's counsel withdrew from the case, and counsel appearing for Petitioner pro hac vice filed six motions seeking an extension of time for Petitioner to respond.(Dkt. Nos. 111, 133.)Petitioner timely filed his opposition on October 28, 2010, asserting that Petitioner's actual innocence excepts him from the statutory limitation that otherwise would have begun to run upon denial of Petitioner's state habeas petition.(Dkt. No. 135.)

Judge Wistrich granted Petitioner multiple extensions of time and, having reviewed Petitioner and Respondents' filings,¹ recommended the dismissal of Petitioner's habeas matter on December 28, 2012.(Dkt. No. 198.)On April 3, 2013, Petitioner timely filed his objection, and Judge Wistrich affirmed his report and recommendation of dismissal on August 26, 2013.(Dkt. No. 207, 216.)The matter was assigned to this Court on May 10, 2013.(Dkt. No. 212.)This Court now considers Petitioner's September 29, 2013 objections to Judge Wistrich's affirmed report and recommendation to dismiss.(Dkt. No. 218.)

Pursuant to 28 U.S.C. § 636, this Court has reviewed the Petition and other papers along with the attached Report and Recommendation of Judge Wistrich.The Court has also reviewed PetitionerSirhan Bishar Sirhan's objections and RespondentGeorge Galaza's response.Having so considered the significant number of filings and orders predating the Court's receipt of this matter, the Court makes its determination de novo.

As is discussed below and in the Report and Recommendation, Petitioner's habeas petition is untimely and fails to present evidence falling within the exception for actual innocence.The limitation period was not statutorily tolled during the pendency of the petitions filed in the California Court of Appeal or California Supreme Court.SeeAllen v. Siebert,552 U.S. 3, 6–7, 128 S.Ct. 2, 169 L.Ed.2d 329(2007)(holding that a petition is not properly filed for purposes of statutory tolling if it is denied as untimely by state courts).Petitioner argues that he is entitled to equitable tolling because he has submitted evidence of actual innocence that was not presented at trial.(Dkt. No. 218at 4.)Accordingly, Petitioner argues that the limitation period did not begin until the date on which he knew or should have known the factual basis for his claims.See28 U.S.C. § 2244(d)(1)(D).

On August 26, 2013, Judge Wistrich filed a sixty-seven-page Report and Recommendation.(Dkt. No. 216.)On September 28, 2013, Petitioner filed a revised sixty-page brief detailing his objections.(Dkt. No. 218.)Having reviewed the evidence and filings in this case, the Court agrees with Judge Wistrich that Petitioner failed to meet the showing required for actual innocence.Accordingly, the Court adopts the Report and Recommendation from below and OVERRULES Petitioner's objections.The Court will separately address Petitioner's objections below.In addition, the Court DENIES Petitioner's request for an evidentiary hearing.

III.LEGAL STANDARD

“The United States District Court for the Central District of California issued General Order 01–13, which fills in specific additional duties assigned to magistrate judges.Federal habeas corpus petitions and extradition proceedings are among the types of cases assigned to magistrates.”Wang v. Masaitis,416 F.3d 992, 999(9th Cir.2005).After being served a copy of the magistrate judge's Report and Recommendation, “any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court.”28 U.S.C. § 636(b)(1)(C).The district court's role in reviewing a magistrate judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1).The Court, after conducting its own de novo review, “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”Id.The party making objections bears the burden of specifically identifying the portions of the report and recommendation to which it objects.See, e.g., United States v. Remsing,874 F.2d 614, 616(9th Cir.1989)(“[district court's] function is to correct those findings made by the magistrate when the litigant has identified a possible error”).Under Rule 72(b), a district court may accept the findings and recommendations of the magistrate judge which have drawn no objection, provided those findings are not clearly erroneous.Thomas v. Arn,474 U.S. 140, 153–55, 106 S.Ct. 466, 88 L.Ed.2d 435(1985).

In McQuiggin v. Perkins,the Supreme Court held “that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar ... or ... [the] expiration of the statute of limitations.”––– U.S. ––––, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019(2013).To show actual innocence, “an otherwise time-barred habeas petitioner[must] demonstrate[ ] that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt.”Lee v. Lampert,653 F.3d 929, 937(9th Cir.2011);accordSchlup v. Delo,513 U.S. 298, 329, 115 S.Ct. 851, 130 L.Ed.2d 808(1995).After this showing, “the petitioner may pass through the Schlup gateway and have his constitutional claims heard on the merits.”Id.“To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.”Schlup,513 U.S. at 324, 115 S.Ct. 851.

“[W]here post-conviction evidence casts doubt on the conviction by undercutting the reliability of the proof of guilt, but not by affirmatively proving innocence, that can be enough to pass through the Schlup gateway to allow consideration of otherwise barred claims.”Lee,653 F.3d at 938(quotingSistrunk v. Armenakis,292 F.3d 669, 673(9th Cir.2002)(en banc)).Nonetheless, “tenable actual-innocence gateway pleas are rare.”McQuiggin,133 S.Ct. at 1928;accordHouse v. Bell,547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1(2006)(“[I]t bears repeating that the Schlup standard is demanding and permits review only in the extraordinary case.”(internal quotation marks omitted)).

Petitioner fails to meet the exacting standard set forth in McQuiggin and Lee to pass through the Schlup actual-innocence gateway.Though Petitioner advances a number of theories regarding the events of June 5, 1968, Petitioner does not dispute that he fired eight rounds of gunfire in the kitchen pantry of the Ambassador Hotel.(Dkt. No. 218at 34(“That he...