Argued and Submitted, Pasadena, California December 5, 2012.
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:05-cv-01059-BTM-CAB. Barry T. Moskowitz, District Judge, Presiding.
The panel amended its opinion and dissent, filed on November 1, 2013; denied a petition for panel rehearing; denied a petition for rehearing en banc on behalf of the court; and ordered that no further petitions shall be entertained in a case in which the panel affirmed the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition.
The panel first determined that petitioner was not entitled to statutory tolling for the 100-day gap between the denial by the California Court of Appeal of petitioner's habeas petition and the filing of his petition in the California Supreme Court because there was no " properly filed" petition pending in state court during that time, and because the delay was unreasonable.
The panel next held that petitioner failed to pass through the actual innocence gateway of Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), and that the district court properly denied an evidentiary hearing.
Judge Berzon dissented. She would hold that petitioner was entitled to statutory tolling because the 100-day gap was reasonable. Alternatively, Judge Berzon would remand with instructions to hold an evidentiary hearing on petitioner's actual innocence claim because he has presented post-conviction evidence that, if credible, demonstrates this case to be the sort of extraordinary one that requires reaching the merits of petitioner's otherwise barred federal habeas claims.
Kurt David Hermansen (argued), Law Office of Kurt David Hermansen, San Diego, California; Jan Stiglitz, Justin Brooks, Alexander Simpson, and Alissa Bjerkhoel, California Innocence Project, San Diego, California, for Petitioner-Appellant.
Kevin Vienna (argued), Supervising Deputy Attorney General; Kamala D. Harris, Attorney General of California; Dane R. Gillette, Chief Assistant Attorney General; Gary W. Schons, Senior Assistant Attorney General; Raquel M. Gonzalez, Deputy Attorney General, San Diego, California, for Respondent-Appellee.
Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges, and Jennifer G. Zipps, District Judge.[*] Opinion by Judge Zipps; Dissent by Judge Berzon.
ZIPPS, District Judge:
Appellant DeArcey Jamul Stewart (" Stewart" ) appeals from the district court's denial of his 28 U.S.C. § 2254 habeas petition as untimely. Stewart is serving a sentence in state prison of two life terms plus seven years following convictions for attempted murder. After pursuing post-conviction relief in state court, Stewart filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of California. After thorough review, the district court denied Stewart's federal habeas petition as untimely. On appeal, Stewart contends that the district court erred in: (1) concluding that Stewart was not entitled to statutory tolling of his federal statute of limitations under § 2244(d); (2) concluding that Stewart had not established an actual innocence claim; (3) failing
to conduct an evidentiary hearing prior to dismissing Stewart's federal habeas petition; and (4) concluding that Stewart's Petition failed to adequately allege a federal claim. We affirm the district ...