William Shropshire v. Isidro Baca , 702 F. App'x 629 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM SHROPSHIRE, No. 16-15214
Petitioner-Appellant, D.C. No. 3:14-cv-00118-VPC
v.
MEMORANDUM*
ISIDRO BACA and ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Argued and Submitted October 19, 2017
San Francisco, California
Before: W. FLETCHER and TALLMAN, Circuit Judges, and HOYT,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36.3.
**
The Honorable Kenneth M. Hoyt, United States District Judge for the
Southern District of Texas, sitting by designation.
William Shropshire appeals the district court’s dismissal of his petition for
writ of habeas corpus, challenging convictions for one count of kidnapping and
multiple counts of robbery with use of a deadly weapon. The district court
dismissed the petition on the ground that it was barred by the Antiterrorism and
Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitations. The
appellant presents two arguments on appeal: first, that he is entitled to equitable
tolling, and second, that he is actually innocent of the kidnapping charge.
We review de novo a district court’s decision to dismiss a petition for writ of
habeas corpus under the AEDPA’s statute of limitations. Summers v. Schriro, 481
F.3d 710, 712 (9th Cir. 2007); Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).
We have jurisdiction pursuant to 28 U.S.C. § 2254 and 28 U.S.C. § 1291.
The appellant waived a state appeal and thereafter, in 2010 and 2013, filed
unsuccessful state writs of habeas corpus. The appellant’s federal petition for writ
of habeas corpus was filed February 2014, more than three years after his only
timely filed state petition.
The AEDPA establishes a one-year limitations period for filing federal
habeas petitions. 28 U.S.C. § 2244(d)(1). The period runs from “the date on
which the [state] judgment [becomes] final by the conclusion of direct review or
the expiration of time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The
appellant concedes that his federal habeas petition was untimely, but he asserts that
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he qualifies for equitable tolling due to his inability to access state records and his
mental incompetence.
The appellant is not entitled to equitable tolling due to his inability to obtain
trial records or medical records. During the period for which tolling is sought, the
appellant filed a motion to modify the judgment and two state habeas petitions.
Therefore, it cannot be said that the appellant’s lack of access to the state records
constitutes “an extraordinary circumstance” that made “it impossible to file a
petition on time.” See Lott v. Mueller, 304 F.3d 918, 924 (9th Cir. 2002)
(quotation omitted).
The appellant is also not entitled to equitable tolling based on mental
incompetence. A petitioner seeking equitable tolling due to mental incompetence
must show “an inability to rationally or factually personally understand the need to
timely file, or a mental state rendering an inability personally to prepare a habeas
petition and effectuate its filing.” Orthel v. Yates, 795 F.3d 935, 938 (9th Cir.
2015). The appellant was judged competent before he was sentenced in September
2009, and the record does not reflect any finding of incompetence after that time.
Furthermore, he filed several state petitions during the years after his sentencing,
indicating that he was capable of preparing and filing habeas petitions. It is,
therefore, not evident that mental incompetency rendered the appellant unable “to
prepare a habeas petition and effectuate its filing”. Id.3 16-15214
The appellant also claims that he is actually innocent of the kidnapping
charge because the state cannot prove the “asportation” element of kidnapping with
regard to one of the victims. “[A]ctual innocence, if proved, serves as a gateway
through which a petitioner may pass whether the impediment is a procedural bar . .
. or . . . expiration of the statute of limitations.” McQuiggin v. Perkins, 133 S. Ct.
1924, 1928 (2013); see also Sawyer v. Whitley, 505 U.S. 333, 339 (1992). The
appellant cannot access this “gateway” because the record before us does not
reveal new evidence in light of which “no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt.” See McQuiggin, 133 S.Ct. at
1928 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995).
The kidnapping charge to which the appellant entered a plea of guilty was
one of eleven similar charges. Even if the appellant established that the asportation
element was not proved in the count to which he entered a plea, there are ten
potential robbery or kidnapping charges for which no proof of innocence has been
presented. Therefore, the appellant has not demonstrated that he is actually
innocent of the crimes to which he pled guilty. Id.At oral argument, counsel for the appellant argued that our recent decision in
Gonzalez v. Sherman, No. 1556855, 2017 WL 4532464 (9th Cir. Oct. 11, 2017),
extended the time to file a federal habeas petition. In Gonzalez, we held that the
AEDPA’s statute of limitations clock restarts when a state-court judgment is
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amended. Id. The appellant successfully had his judgment amended to reflect
credit for time served on November 4, 2010. Therefore, Gonzalez does not aid the
appellant’s equitable tolling claim because he did not file his federal habeas
petition within one year of that date. Accordingly, the appellant has failed to show
that he is entitled to equitable tolling or is actually innocent and thereby overcomes
the AEDPA’s one-year statute of limitations.
The judgment of the district court is AFFIRMED.
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