United States District Court, D. Nevada
JOHN H. ROSKY, Petitioner,
QUENTIN BYRNE, et al., Respondents.
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 comes before the Court on
respondents' motion to dismiss on several grounds,
including timeliness. (ECF No. 16.) Petitioner John Rosky
(“Rosky”) has opposed. (ECF No. 28.) On January
19, 2018, the Court directed respondents to respond to
Rosky's claim that his petition is timely under the
actual innocence exception of Schlup v. Delo, 513
U.S. 298 (1995) (“gateway claim of actual
innocence”). (ECF No. 42.) The Court further ordered
Rosky to provide a copy of an audio recording he relies on
for his gateway claim of actual innocence, along with any and
all evidence authenticating the recording. (Id.)
Respondents and Rosky have responded to the Court's
order. (ECF Nos. 49 & 51.) In addition, following an
order of the Court, respondents have filed the subject audio
recordings as manual exhibits. (See ECF Nos. 52, 53,
challenges his state court convictions for indecent exposure
and sexual assault. (Exhs. 75, 80, 161, 163.) Rosky was
initially found guilty on both counts following a jury trial
in 2003, but on appeal the Nevada Supreme Court reversed the
sexual assault conviction and remanded for a new trial.
(See Exhs. 77, 80, 128.) Rosky's second trial
commenced on March 27, 2006. At trial, the following evidence
victim, C.J., met Rosky during a snowball fight in their
apartment complex, and they became friends. (Exh. 155 (Tr.
48).) C.J. began spending time at Rosky's apartment,
watching T.V. or playing on the computer. (Id. at
48-49.) Rosky would often give her gifts, such as cash and
C.D.s, or take her out to eat. (Id. at 49.)
Sometimes, they would wrestle, and when Rosky pinned C.J.
down she would jokingly yell “rape, ” which
caused Rosky to immediately stop. (Exh. 156 (Tr. 64-65 &
93).) C.J. came home after one of these wrestling sessions
and told her grandmother about it; her grandmother could tell
by the tone of her voice or the way she said it that she was
uncomfortable. (Exh. 155 (Tr. 149).)
Rosky and C.J. drove together from Reno to Susanville to get
a dog - a dog that Rosky told C.J. was hers and for her to
take care of. (Id. at 52.) C.J. and Rosky spent a
great deal of time together, including writing each other
emails, talking on the phone, and walking the dog.
(Id. at 62-63.) C.J. also had a key to Rosky's
apartment. (Exh. 155 (Tr. 157-58).) C.J. went over to
Rosky's apartment frequently in the year before the
assault, and by December 1999 was going up to five times a
week. (Id. at 62.) C.J. was, at the time, 13 years
old. (See Exh. 155 (Tr. 140).)
friend, Brittany Middleton, testified that Rosky bought C.J.
things and that C.J. would go to Rosky's apartment
“all the time, ” including at night and almost
every day in the month leading up to the assault. (Exh. 155
(Tr. 170-72 & 182).) Middleton also testified that C.J.
was very attached to the dog Rosky got for her. (Id.
at 175.) Middleton sometimes observed Rosky walking the dog
by C.J.'s apartment and looking into her windows or
patio. (Id. at 177.) She also testified that Rosky
always threatened to get rid of the dog, and that that was
one of the reasons C.J. would go over to Rosky's
apartment. (Id. at 174.) Middleton testified that
toward the end of December 1999, Rosky started getting
“real pushy towards CJ and it seemed like more
testified that the night of the assault, which occurred at
the end of December 1999, she and her friends had been
drinking at Rosky's apartment as part of a New Year's
Eve celebration. (Exh. 156 (Tr. 70-72).) She did not remember
how much she had to drink, but it was more than usual and she
felt dizzy, out of sorts, and not in control of all her
senses. (Id. at 53-54.) When her friends left for
another party, C.J. stayed behind. (Id. at 71-72.)
Then, she testified, she and Rosky went into the bedroom,
where he forced her to have sex. (Id. at 53-56 &
72.) Rosky did not forcibly take C.J. into the bedroom or
threaten her; she voluntarily walked into the room.
(Id. at 72-73). And she did not fight against Rosky
or say anything, including “no, ” “stop,
” or “rape.” (Id. at 54-55 &
75-76.) That, C.J. testified, was because she was
“really drunk and . . . didn't know what to
do.” (Id. at 55.) Afterwards, C.J. went home,
feeling “all out of sorts” and “really
violated.” (Id. at 56.)
did not immediately tell anyone about the assault and in fact
continued going over to Rosky's house after it happened.
(Exh. 156 (Tr. 79). She testified that she did not tell
anyone about the incident because she was embarrassed.
(Id.) Her grandmother also testified that C.J. felt
ashamed and guilty and “totally block[ed]” the
incident “out.” (Exh. 155 (Tr. 163-64).) C.J.
testified that she continued going over to Rosky's house
both because she was afraid of him and because he gave her
things. (Exh. 156 (Tr. 90-94).) Specifically, C.J. testified
she thought Rosky might hurt her, their dog, or her boyfriend
if she told anyone about the assault or if she stopped coming
over. (Id. at 90-91.)
in January 2000, C.J. told Middleton what had happened;
Middleton then told her father, who contacted the
police. (Exh. 155 (Tr. 185).)
Michael Tone interviewed C.J. on February 2, 2000, at which
time she denied the assault or any sexual contact with Rosky
at all. (Exh. 155 (Tr. 57, 80-81 & 113).) C.J. told Tone
that one time, at the end of December 1999, she and her
friends had been partying at Rosky's; she stated that she
had not been drinking, that Rosky was grossly intoxicated,
and that everyone left after Rosky passed out. (Exh. 156 (Tr.
February 8, 2000, C.J. called the police to report that she
thought Rosky was having sex because she heard him through
the wall of his apartment. (Id. at 81-82 & 120.)
Afterwards, she went over to Rosky's apartment and
scratched something on his door. (Id.)
after Tone's first interview with C.J., C.J.'s
grandmother brought Tone emails she had found that were
between Rosky and C.J. (Id. at 10.) Some of the
emails were forwarded from Rosky to C.J. of emails between
Rosky and a woman named “Gina Newby, ” who C.J.
believed was a “really close” friend of
Rosky's. (Exh. 156 (Tr. 95, 103.) The content of the
emails regarded Rosky and C.J.'s relationship and things
that had happened between them, including drinking, C.J.
coming over at night, and Rosky researching why C.J. had
missed her menstrual cycle. (Id. at 104.)
“Gina” would respond by saying things like,
“I'm really glad that you two are together, you
seem to really care a lot about each other. . . . I know that
[C.J]'s got you wrapped around her finger. . .”
(Id.) Another email from Rosky to C.J., dated
February 10, 2000, laid out a number of rules, including that
C.J. was limited to four alcoholic drinks in a night if she
had to be up early the next day, and that on school nights
she had to be home by 1 a.m. (Exh. 156 (Tr. 12-13).)
before February 15, 2000, C.J. called a woman named Gina
Newby, who she believed to be the “Gina” from
Rosky's emails; C.J. attempted to speak to her about the
emails, but Newby didn't seem to know what she was
talking about and C.J. thought she was “playing
dumb.” (Id. at 97-98.) Newby later filed a
police report against Rosky asserting that he was sending
emails to C.J., and the case was assigned to Officer Tone.
(Exh. 156 (Tr. 100).) Tone realized that the Newby case and
this case were related and that Rosky had manufactured the
emails between himself and “Gina” that he had
sent to C.J. (Id. at 100-03.)
February 16, 2000, Tone again interviewed C.J. Again, C.J.
denied the assault. However, after Tone revealed to C.J. that
email “Gina” was Rosky himself, C.J. told Tone
about the assault. (Exh. 156 (Tr. 95-96 & 129-31).)
and Detective Thomas Reid interviewed Rosky. (See
Exh. 156 (Tr. 23).) At least part of the interview was played
for the jury, and Reid and Tone also testified as to what
Rosky told them. (See Exh. 155 (Tr. 197-200); Exh.
156 (Tr. 24-31).) During the interview, Rosky initially
denied even being friends with C.J. and changed his story
several times before finally admitting that he'd had
sexual intercourse with C.J. (Exh. 155 (Tr. 198-200); Exh.
156 (Tr. 24-31).)
March 29, 2006, the jury found Rosky guilty of sexual
assault. (Exh. 161.) Rosky was sentenced to a term of life
imprisonment with eligibility for parole after twenty years,
to run concurrent with his twelve-month sentence on the
indecent exposure conviction. (Exh. 163.)
appealed. (Exh. 167.) The Nevada Supreme Court affirmed.
(Exh. 183). Remittitur, which initially issued on March 11,
2008, was recalled and stayed pending consideration of
Rosky's motion for rehearing en banc. (Exhs.
186, 189.) On July 7, 2008, the Nevada Supreme Court denied
the motion for rehearing, and on August 1, 2008, remittitur
issued. (Exhs. 194, 197.)
his direct appeal became final, Rosky filed a petition for
postconviction relief in state court. (Exh. 188.) The
district court denied relief, and Rosky appealed. (Exhs. 260,
262.) The Nevada Supreme Court affirmed, and remittitur
issued on July 8, 2013. (Exhs. 290, 292.)
September 4, 2013, Rosky dispatched a federal petition for
writ of habeas corpus to this court, commencing Case Number
2:13-CV-01707-JCM-PAL. The petition asserted a single double
jeopardy claim. (ECF Nos. 1, 9 in No. 2:13-CV-01707-JCM-PAL.)
On initial review, the court ordered Rosky to show cause why
the petition should not be dismissed as completely
unexhausted. (ECF No. 8 in No. 2:13-CV-01707-JCM-PAL.) As
Rosky's response conceded that the single claim presented
was not exhausted, the court dismissed the petition. (ECF
Nos. 10, 12 in No. 2:13-CV-01707-JCM-PAL.) Rosky appealed,
and the Ninth Circuit denied a certificate of appealability.
(ECF Nos. 14 & 16 in No. 2:13-CV-01707-JCM-PAL.)
November 21, 2014, Rosky filed a second postconviction habeas
petition in state court. (Exh. 293.) After the district court
dismissed the petition as procedurally barred and the Nevada
Court of Appeals affirmed, Rosky filed the instant federal
habeas petition. (Exhs. 310, 322; ECF No. 2.) Rosky
dispatched the petition in this case on March 7, 2016.
move to dismiss the instant petition on several grounds,
including that it was filed after the expiration of the
one-year statute of limitations for petitions filed pursuant
to 28 U.S.C. § 2254.
one-year limitation period for § 2254 petitions begins
to run after the date on which the judgment challenged became
final by the conclusion of direct review or the expiration of
the time for seeking such direct review, unless it is
otherwise tolled or subject to delayed accrual. 28 U.S.C. §
2244(d)(1)(A). The limitations period is tolled while
“a properly filed application for State post-conviction
or other collateral review” is pending. Id.
§ 2244(d)(2). Petitions can also be subject to equitable
tolling in some circumstances. See Holland v.
Florida, 560 U.S. 631, 645 (2010). Neither a properly
filed federal habeas petition nor an untimely state habeas
petition tolls the limitations period, however. Pace v.
DiGuglielmo, 544 U.S. 408, 413 (2005) (holding that an
untimely state habeas petition is not “properly
filed” and thus does not toll the limitation period);
Duncan v. Walker, 533 U.S. 167, 172 (2001) (holding
that “a properly filed federal habeas petition does not
toll the limitation period”).
Rosky filed a timely petition for state postconviction habeas
relief before his conviction became final, the limitations
period in this case did not begin to run until July 8, 2013 -
the date remittitur issued on the appeal of the denial of the
petition. Absent a basis for either delayed accrual or other
tolling, the federal limitation period thus expired on July
8, 2014. Rosky's petition in this case, dispatched for
filing on March 7, 2016, is thus apparently untimely.
Rosky's first federal petition nor his second, untimely,
state postconviction petition tolled the limitations period.
Duncan, 533 U.S. at 172; Pace, 544 U.S. at
413. Rosky asserts that his petition may be considered timely
pursuant to Schlup v. Delo, 513 U.S. 298 (1995)
because he is actually innocent or, in the alternative, that
he is entitled to equitable tolling.
actual innocence is a narrow “gateway” through
which a petitioner can obtain federal court consideration of
habeas claims that are otherwise procedurally barred,
including claims filed after the expiration of the federal
limitations period. Schlup, 513 U.S. at 314-15;
Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011)
(en banc) (A “credible claim of actual innocence
constitutes an equitable exception to AEDPA's limitations
period, and a petitioner who makes such a showing may pass
through the Schlup gateway and have his otherwise
time-barred claims heard on the merits.”); see also
McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). In this
regard, “actual innocence” means actual factual
innocence, not mere legal insufficiency. See, e.g.,
Sawyer v. Whitley, 505 U.S. 333, 339 (1992).
“[T]enable actual-innocence gateway pleas are
rare.'” McQuiggen, 569 U.S. at 386
(quoting Schlup, 513 U.S. at 329); see also
House v. Bell, 547 U.S. 518, 538 (2006) (emphasizing
that the Schlup standard is “demanding”
and seldom met). To satisfy the narrow Schlup
standard, a petitioner must come forward with new, reliable
evidence that was not presented at trial that, together with
the evidence adduced at trial, demonstrates that it is more
likely than not that no reasonable juror would have found the
petitioner guilty beyond a reasonable doubt. Schlup,
513 U.S. at 329.
evidence need not be newly discovered, but it must be
“newly presented.” See Griffin v.
Johnson, 350 F.3d 956, 961-63 (9th Cir. 2003). A
“petitioner may pass through the Schlup
gateway by promulgating evidence that significantly
undermines or impeaches the credibility of witnesses
presented at trial, if all the evidence, including new
evidence, makes it ‘more likely than not that no
reasonable juror would have found petitioner guilty beyond a
reasonable doubt.'” Gandarela v. Johnson,
286 F.3d 1080, 1086 (9th Cir. 2002).
support of his gateway claim of actual innocence, Rosky
invokes Grounds Five through Ten of his petition. (ECF No. 28
at 4; ECF No. 2 at 80-99.) As an initial matter, Grounds Five
and Ten are legal arguments, not evidence. Accordingly,
Grounds Five and Ten do not provide a basis for passing
through the Schlup gateway.
Ground Six, Rosky asserts that an audio tape recording of a
conversation between himself and C.J., recorded on January
26, 2000 - after the assault - undermines C.J.'s
credibility by showing she: (1) was in a consensual intimate
relationship with Rosky, possessed intimate knowledge of his
anatomy and “desired to perform fellatio” on him;
(2) was not embarrassed to talk about sex and possessed
knowledge of sex beyond her years; and (3) was not behaving
as one who had just been assaulted by Rosky one month prior
and in fact was comfortable with Rosky. (ECF No. 2 at 84-87.)
Respondents argue that this evidence is not new or reliable
but that even if it were it does not show Rosky is actually
Court will assume without deciding that the audiotape
constitutes new, reliable evidence. Because even assuming the
evidence is new and reliable, the Court is not persuaded that
it is “more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable
doubt” had the recording been played at trial.
audio recordings were filed manually as Exhibits 324 and
(See ECF No. 53.) On the recordings, the following
conversation takes place:
C.J.: I love your wiggly biceps.
Rosky: You love what?
C.J.: I love your wiggly biceps.
Rosky: Yeah, I like ‘em, ...