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Rosky v. Byrne

United States District Court, D. Nevada

March 19, 2018

JOHN H. ROSKY, Petitioner,
QUENTIN BYRNE, et al., Respondents.



         This 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, 54.)

         I. BACKGROUND

         Rosky 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 was presented.

         The 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).)

         Once, 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).)

         C.J.'s 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 controlling.” (Id.)

         C.J. 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.)

         C.J. 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.)

         Sometime in January 2000, C.J. told Middleton what had happened; Middleton then told her father, who contacted the police.[1] (Exh. 155 (Tr. 185).)

         Officer 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. 117-18).)

         Around 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.)

         Sometime 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).)

         Sometime 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.)

         On 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).)

         Tone 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).)

         On 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.)

         Rosky 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.)

         Before 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.)

         On 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.)

         On 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.

         Respondents 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.


         The 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.[2] 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”).

         Because 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.

         Neither 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.

         A. Actual Innocence

         Demonstrating 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.

         The 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).

         In 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.

         In 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 innocent.

         The Court will assume without deciding that the audiotape constitutes new, reliable evidence.[3] 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.

         The audio recordings were filed manually as Exhibits 324 and 325.[4] (See ECF No. 53.) On the recordings, the following conversation takes place:

Rosky: Okay.
C.J.: I love your wiggly biceps.
Rosky: You love what?
C.J.: I love your wiggly biceps.
Rosky: Yeah, I like ‘em, ...

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