(HC) Barton v. Gastelo

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA WILLIAM RAY BARTON, Case No. 2:21-cv-01933-JDP (HC) 12 Petitioner, ORDER DIRECTING THE CLERK OF COURT TO ASSIGN A DISTRICT JUDGE 13 v. TO THIS ACTION JOSIE GASTELO, FINDINGS AND RECOMMENDATIONS THAT THE SECOND AMENDED PETITION 15 Respondent. BE DISMISSED AS TIME-BARRED 16 ECF No. 10 18 Petitioner, proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. After reviewing his previous petition, ECF No. 1, I found that his claims were time- barred because his conviction was finalized in 1976. ECF No. 9. I gave petitioner an opportunity to amend and to explain why his claims should proceed. He filed two amended petitions, ECF Nos. 8 & 10. The second supersedes the first, but I have considered both. Petitioner has not shown why his time-barred claims should proceed, and I will recommend that his petition be dismissed without leave to amend.

25 The second amended petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response unless it “plainly appears” that the | petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); | Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998).

3 As noted in my previous order, the conviction petitioner is challenging was finalized in 1976, ECF No. 10 at 1, and his petition is time-barred. See Miles vy. Prunty, 187 F.3d 1104, 1105 | (9th Cir. 1999) (holding that a “prisoner with a state conviction finalized before April 24, □□□□ □□ | . had until April 23, 1997 to file a federal habeas petition”). Time-barred claims may still be | reviewed in the rare case where the petitioner presents convincing evidence of his actual | innocence. Bousley v. United States, 523 U.S. 614, 623 (1998). A credible claim of actual || mnocence requires the petitioner to “support his allegations of constitutional error with new | reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness 11 accounts, or critical physical evidence.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Here, | however, petitioner argues only that his guilty plea was not voluntary. ECF No. 8 at 3. He has | neither alleged any facts nor presented any evidence tending to establish his actual innocence.

14 Accordingly, it is ORDERED that the Clerk of Court is directed to assign a district judge || to this action.

16 Further, it is RECOMMENDED that the second amended petition, ECF No. 10, be | DISMISSED without leave to amend.

18 These findings and recommendations are submitted to the U.S. District Court Judge | presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of | Practice for the United States District Court, Eastern District of California. Within fourteen days | of service of the findings and recommendations, petitioner may file written objections to the | findings and recommendations with the court. That document must be captioned “Objections to | Magistrate Judge’s Findings and Recommendations.” The District Judge will then review the | findings and recommendations under 28 U.S.C. § 636(b)(1)(C).

95 IT IS SO ORDERED.

26 ( q Sty — Dated: _ May 16, 2022 □□ 27 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE