1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL LENIOR SMITH, Case No. 2:25-cv-1106-TLN-JDP (P) 12 Petitioner, 13 v. ORDER 14 JASON SCHULTZ, 15 Respondent. 16 17 Petitioner, a state prisoner, brings this action under section 2254. ECF No. 1. He 18 acknowledges that his petition is well past the one-year statute of limitations in the Anti- 19 Terrorism and Effective Death Penalty Act (“AEDPA”) but argues that his petition should be 20 considered because of new evidence indicating that he is actually innocent of the crime of which 21 he was convicted. Out of an abundance of caution, I will dismiss the petition with leave to amend 22 so that petitioner may explain why this action should still proceed. I will grant petitioner’s 23 application to proceed in forma pauperis, ECF No. 7. 24 The petition is before me for preliminary review under Rule 4 of the Rules Governing 25 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 26 the habeas petition and order a response to the petition unless it “plainly appears” that the 27 petitioner is not entitled to relief. See Valdez v. Montgomery,

(9th Cir. 2019); 28 1 Boyd v. Thompson,

(9th Cir. 1998). 2 Petitioner was convicted of selling a controlled substance in 2002, more than twenty years 3 before this petition was filed. ECF No. 1 at 1. He argues that his petition should not be 4 dismissed as untimely, however, because new evidence shows that he is actually innocent. 5 Petitioner notes, not inaccurately, that actual innocence is an exception to AEDPA’s one-year 6 statute of limitations. See McQuiggin v. Perkins,

(2013). To qualify for the 7 exception, however, a petitioner “must show that it is more likely than not that no reasonable 8 juror would have convicted him in the light of the new evidence.”

. Here, petitioner 9 argues that a police report that he did not obtain until 2009 is “new evidence” proving that his 10 was a case of mistaken identity, and that another man committed the relevant crime. ECF No. 1 11 at 3, 16-17. 12 As an initial matter, petitioner offers no justification for his lengthy delay in presenting 13 this new evidence that he indicates was available to him in 2009. Id. at 17. “Unexplained delay 14 in presenting new evidence bears on the determination whether the petitioner has made the 15 requisite showing.” McQuiggin,

. Additionally, petitioner’s evidence and theory 16 of mistaken identity, as presented, do not show that it is more likely than not that no reasonable 17 juror would convict him. As best I can tell, he argues that the police report’s description of 18 another man involved in selling drugs better fits the description of the perpetrator. ECF No. 1 at 19 17. This does little more than raise the possibility that another man committed the crime; it does 20 not present an unassailable showing of innocence. Schlup v. Delo,

(1995) 21 (“The meaning of actual innocence . . . does not merely require a showing that a reasonable doubt 22 exists in the light of the new evidence, but rather that no reasonable juror would have found the 23 defendant guilty.”). 24 Petitioner also argues that he is entitled to relief under California Senate Bill 923. ECF 25 No. 1 at 20. But state law cannot form the basis for federal habeas relief. Estelle v. McGuire, 502

(1991) (“Today, we reemphasize that it is not the province of a federal habeas 27 court to reexamine state-court determinations on state-law questions. In conducting habeas 28 review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, 1 | or treaties of the United States.”). 2 Rather than recommending dismissal of the case, I will dismiss the petition with leave to 3 | amend. Petitioner may file a new petition that addresses these deficiencies and explains why, if at 4 | all, his claims should proceed. 5 Accordingly, it is ORDERED that: 6 1. The petition, ECF No. 1, is DISMISSED with leave to amend. 7 2. Within thirty days from service of this order, petitioner shall file either (1) an amended 8 | petition or (2) notice of voluntary dismissal of this action without prejudice. 9 3. Failure to timely file either an amended petition or notice of voluntary dismissal may 10 | result in the imposition of sanctions, including a recommendation that this action be dismissed 11 | with prejudice pursuant to Federal Rule of Civil Procedure 41(b). 12 4. The Clerk of Court shall send petitioner a habeas petition form with this order. If he 13 | files an amended complaint, he must use this form. 14 5. Petitioner’s motion to proceed in forma pauperis, ECF No. 7, is GRANTED. 15 16 IT IS SO ORDERED. 17 ( 1 Sy — Dated: _ July 31, 2025 q——— 18 JEREMY D. PETERSON 19 UNITED STATES MAGISTRATE JUDGE

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