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Hernandez-Cruz v. Bowser

United States District Court, D. Oregon

November 13, 2018

RUDOLFO HERNANDEZ-CRUZ, Petitioner,
v.
TROY BOWSER, Respondent.

          Rudolfo Hernandez-Cruz Petitioner, Pro Se

          Ellen F. Rosenblum, Attorney General Nicholas M. Kallstrom, Assistant Attorney General Attorneys for Respondent

          OPINION AND ORDER

          ROBERT E. JONES, UNITED STATES DISTRICT JUDGE

         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court convictions for Attempted Murder, Assault, and Unlawful Use of a Weapon. Because Petitioner failed to timely file this case, his Petition for Writ of Habeas Corpus (#2) is dismissed.

         BACKGROUND

         Petitioner viciously attacked the female victim in this case two days after she ended their romantic relationship. He stabbed her in the neck, sliced her face, and tried to stab her in the chest. As a result of the attack, the victim lost the ability to fully turn her head and suffers from substantial scarring for the remainder of her life.

         On January 9, 2009, the Washington County Grand Jury indicted Petitioner on one count of Attempted Murder, four counts of Assault in the First Degree, and five counts of Unlawful Use of a Weapon. Respondent's Exhibit 102. A jury subseguently convicted him of all charges, and the trial court sentenced him to 300 months in prison.

         Petitioner took a direct appeal, but the Oregon Court of Appeals affirmed the trial court's decision without issuing a written opinion. State v. Hernandez-Cruz, 240 Or.App. 563, 249 P.3d 166 (2011). Petitioner did not seek review from Oregon's Supreme Court.

         Petitioner next filed for post-conviction relief ("PCR") in Malheur County where the PCR Court denied relief on his claims. Respondent's Exhibit 125. The Oregon Court of Appeals affirmed the lower court without opinion, and the Oregon Supreme Court denied review. Cruz v. Nooth, 276 Or.App. 918, 370 P.3d 565, rev. denied, 359 Or. 777, 381 P.3d 815 (2016).

         Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on July 20, 2018. Respondent asks the Court to dismiss the action because Petitioner waited 1065 days to file it, placing it well outside the applicable one-year statute of limitations. Petitioner concedes that his case is untimely, but he asks the Court to excuse this procedural deficiency because he is entitled to equitable tolling because: (1) his transfer to another prison caused him to delay filing this case; and (2) he is actually innocent based upon his intoxication at the time of his crimes.

         DISCUSSION

         A habeas corpus petitioner must generally file his federal challenge to his state convictions within one year of the time those convictions become final at the conclusion of his direct review. 28 U.S.C. § 2244(d)(1)(A). Where a petitioner has not done so, equitable tolling is available to toll the one-year statute of limitations. Holland v. Florida, 560 U.S. 631, 645 (2010) . A litigant seeking to invoke equitable tolling must establish: (1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstance prevented him from timely filing his petition. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

         In his Petition, Petitioner asserts that he is entitled to equitable tolling because he suffers from a language barrier and received less help preparing his filings after his transfer from the Snake River Correctional Institution to the Two Rivers Correctional Institution. Even assuming his language barrier and prison transfer combined to present an extraordinary circumstance, the transfer did not occur until well after the limitation period had expired.[1]

         Petitioner next claims that he is actually innocent of his crimes. A petitioner who fails to comply with the one-year filing deadline applicable to 28 U.S.C. § 2254 habeas corpus cases may overcome that default if he is able to show that he is actually innocent of his underlying criminal conduct. McQuiggin v. Perkins,569 U.S. 383, 386 (2013) . In order to make a gateway showing of actual innocence, a petitioner must present "new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial" which establishes that "it is ...


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