United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
the Court are the amended petition for a writ of habeas
corpus (ECF No. 51), respondents' motion to dismiss (ECF
No. 60), petitioner's opposition (ECF No. 61), and
respondents' reply (ECF No. 65). The amended petition is
untimely, and petitioner has not demonstrated actual
innocence to excuse the operation of the statute of
timeliness of the amended petition under 28 U.S.C. §
2244(d)(1) is not in dispute. An amended judgment of
conviction was entered on August 2, 2007. (Exh. 24 (ECF No.
52-23).) Petitioner did not appeal, and the judgment became
final at the end of September 4, 2007, taking into account
that the deadline to file a notice of appeal otherwise would
have fallen on a weekend and Labor Day. On November 13, 2007,
petitioner filed in the state district court a motion to
modify his sentence. (Exh. 29 (ECF No. 58).) The state
district court denied the motion on December 7, 2007. (Exh.
31 (ECF No. 52-30).) Petitioner did not appeal the denial of
the motion. The federal one-year period might have been
tolled while the sentence-modification motion was pending,
under 28 U.S.C. § 2244(d)(2). However, even with that
tolling, petitioner filed no other petitions for
post-conviction review in state court in the remaining time
allowed under § 2244(d)(1). Petitioner did file two
post-conviction habeas corpus petitions and a motion to
withdraw his guilty plea in 2010 and 2011, but the federal
one-year period already had expired, and no time was left to
be tolled. Ferguson v. Palmateer, 321 F.3d 820, 823
(9th Cir. 2003).
presents a claim of actual innocence. Actual innocence can
excuse operation of the statute of limitations. McQuiggin
v. Perkins, 569 U.S. 383, 386-87 (2013).
“‘[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in
light of the new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable
doubt.'” Id. at 386 (quoting Schlup v.
Delo, 513 U.S. 298, 329 (1995)).
following are facts that are known and not disputed.
Petitioner was enlisted in the Army. On January 21, 2005,
while he was stationed in North Carolina, petitioner called a
detective of the Las Vegas Metropolitan Police Department and
confessed to sexually assaulting his wife, K.B., in Clark
County, Nevada. The same detective called K.B., who had
returned to Nevada earlier in January. At first, she
confirmed petitioner's account, but she did not want to
give a formal statement or to press charges. Later, she
changed her mind and did give a formal statement. The Army
discharged petitioner on February 25, 2005. Months later,
petitioner was charged with six, later five, counts of sexual
assault. (Exh. 2 (ECF No. 52-2), Exh. 9 (ECF No. 52-9).) K.B.
testified at the preliminary hearing that petitioner had
committed acts amounting to sexual assault. (Exh. 7 (ECF No.
argument for actual innocence is that his confession,
K.B.'s statement, and K.B.'s testimony all were
false, as part of his plan to be discharged from the Army.
(1) He called the detective and confessed falsely, hoping
that the detective would start the process to arrest him and
take him away from the Army. (2) Thinking that corroboration
would help, he told K.B. that he had sex with her best friend
on the night before their wedding. (3) K.B. then gave a false
statement to the detective that petitioner had sexually
assaulted her. (4) K.B. then gave false testimony in the
preliminary hearing that petitioner had sexually assaulted
actual-innocence argument is deficient. First,
petitioner's contention has a gap. Something is missing
between steps 2 and 3, described above. A statement that
petitioner was unfaithful to K.B., by itself, would not lead
her to make the same false statement of repeated sexual
assaults that petitioner himself had made to the detective.
What else led to K.B. making exactly the accusation that
petitioner needed? In more than ten years, neither
petitioner, nor trial counsel, nor current federal habeas
corpus counsel has given the necessary explanation or
petitioner has given no evidence and has made no argument
that K.B. has recanted her accusation. Instead, he argues
that K.B.'s testimony was weak and unbelievable. K.B.
needed only testify that petitioner committed acts that
amounted to sexual assault as defined in NRS §§
200.364 and 200.366. She did. State law does not require any
corroboration to her testimony. Everything else that
petitioner argues actually is a matter of credibility, which
is for a jury to decide.
the timing is disputed as to when petitioner told K.B. that
he was unfaithful and when K.B. told other people that
petitioner had sexually assaulted her. Petitioner argues that
he falsely confessed on January 21, 2005, and later he told
K.B. about his infidelity to get K.B. to accuse petitioner of
sexual assault. However, K.B. testified at the preliminary
hearing that she had told her parents about the sexual
assaults in early January 2005. That was before she had
returned to Nevada, before petitioner had spoken to the
detective, and before she had learned of petitioner's
infidelity. If a jury was to believe K.B.'s timeline,
then petitioner's entire argument collapses. Petitioner
has given the Court no reason why no juror could believe
what petitioner has shown at best is a credibility conflict,
which is what a jury would need to decide. If a jury believed
him, then they would find him not guilty. If a jury believed
K.B., then they would find him guilty. However, even in light
of all his arguments, petitioner has not established that it
was more likely than not that no reasonable juror would
believe K.B.'s testimony and that every reasonable juror
would believe his testimony. Petitioner has not demonstrated
actual innocence, and the court will dismiss this action as
jurists would not find the Court's conclusions to be
debatable or wrong, and the Court will not issue a
certificate of appealability.
also argue that some grounds in the amended petition are
unexhausted and that some grounds in the amended petition are
procedurally defaulted. The Court will not address these