United States District Court, W.D. Washington, Tacoma
ORDER TO FILE SUPPLEMENTAL ANSWER
W. CHRISTEL UNITED STATES MAGISTRATE JUDGE
District Court has referred this action filed under 28 U.S.C.
§ 2254 to United States Magistrate Judge David W.
Christel. On March 21, 2019, Petitioner Jerome Ceasar Alverto
initiated this action challenging his state court convictions
and sentence. See Dkt. 1. After review of the
record, the Court directs Respondent to file a supplemental
state court record. The Court also grants Petitioner's
Motion to Supplement Response to Answer (Dkt. 33).
Supplemental State Court Record
Answer, Respondent argues the Petition is barred by the
one-year statute of limitations. Dkt. 22. Petitioner asserts
that he is actually innocent and, thus, the Court should
excuse his untimeliness and consider his Amended Petition on
the merits. See Dkt. 32.
statute of limitations is subject to an actual innocence
exception. See Schlup v. Delo, 513 U.S. 298 (1995).
In order to present otherwise time-barred claims to a federal
habeas court under Schlup, a petitioner must produce
sufficient proof of his actual innocence to bring him
“within the ‘narrow class of cases ...
implicating a fundamental miscarriage of justice.'”
513 U.S. at 314-15 (quoting McCleskey v. Zant, 499
U.S. 467, 494 (1991)). The evidence of innocence must be
“so strong that a court cannot have confidence in the
outcome of the trial unless the court is also satisfied that
the trial was free of nonharmless constitutional
error.” Schlup, 513 U.S. at 316. A
“petitioner must show that it is more likely than not
that no reasonable juror would have convicted him in the
light of the new evidence.” Id. at 327. Under
Schlup, Petitioner is required “to support his
allegations of constitutional error with new reliable
evidence- whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence-that was not presented at trial.” Id.
at 324. The habeas court must then “consider all the
evidence, old and new, incriminating and exculpatory, ”
admissible at trial or not. House v. Bell, 547 U.S.
518, 538 (2006) (internal quotation marks omitted). On this
complete record, the court makes a
“‘probabilistic determination about what
reasonable, properly instructed jurors would do.'”
Id. at 538 (quoting Schlup, 513 U.S. at
Petitioner contends he overcomes the time-bar because he is
actually innocent. See Dkt. 32. Specifically,
Petitioner contends the following evidence shows he is
actually innocent: (1) DNA test of a hair found on a
neighbor's door when the victim went to get help; (2)
handwriting analysis showing Petitioner was not the author of
a list detailing things to do to kill a woman; (3) newly
discovered witness testimony; and (4) Petitioner's phone
records showing he did not call the victim. Dkt. 32.
asserted a self-serving affidavit stating the four pieces of
evidence show he is innocent. Id. However, he also
submitted the affidavit of Maurice Thrower, an inmate housed
with Petitioner, and a letter from David G. Cupp, a certified
fraud specialist and handwriting examiner. See Dkt.
32. Mr. Thrower stated a man named Eric told Mr. Thrower that
he shot his girlfriend and his girlfriend's ex-husband
went to jail for the attempted murder. Id. at pp.
87-88. Mr. Thrower believes Eric was speaking of
Petitioner's case. Id. Mr. Cupp contends Eric
Rogers is the author of a notepad listing “to do”
steps to kill a woman. Dkt. 32, pp. 90-103.
filed an Answer to the Petition with portions of the state
court record. Dkt. 22, 23. The Court has reviewed the Answer
and finds relevant portions of the state court record,
including the trial transcript, were not included in state
court record provided to the Court. See Dkt. 23.
While the Court recognizes the actual innocence exception to
overcome the statute of limitations is rare, Petitioner has
submitted evidence that must be considered in light of the
all the evidence, new and old. Therefore, the Court directs
Respondent to file a supplemental state court record. The
supplemental state court record should include the trial
transcripts and any additional state court records relevant
to this Court's determination.
Motion to Supplement (Dkt. 33)
filed a Motion to Supplement Response to Respondent's
Answer and Memorandum of Authorities, wherein he provides
corrected pages to his Answer. Dkt. 33. After consideration
of the Motion, the Motion (Dkt. 33) is granted. The Court
will consider Petitioner's Supplement in deciding this
on the above stated reasons, the Court directs Respondent to
file a supplemental state court record on or before January
17, 2020. The Court will not accept additional briefing at
Motion to Supplement (Dkt. 33) is granted.
Clerk of Court is directed to re-note the Petition (Dkt. 18)