United States District Court, D. Oregon
Rudolfo Hernandez-Cruz Petitioner, Pro Se
F. Rosenblum, Attorney General Nicholas M. Kallstrom,
Assistant Attorney General Attorneys for Respondent
OPINION AND ORDER
E. JONES, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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).
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.
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
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.
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