1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

United States District Court

Eastern District of California 

Christopher Wachniuk,

Petitioner, No. Civ. S 04-1623 MCE PAN P

vs. Findings and Recommendations

Gail Lewis,

Respondent.

-oOoPetitioner is a state prisoner without counsel seeking a

writ of habeas corpus.

Petitioner pleaded guilty to first degree felony-murder in

violation of California Penal Code § 187 and was sentenced in

1998 to a term of 25 years’ to life imprisonment.

The following facts are not disputed. Petitioner and his

co-defendant met the victim at a bar, departed with the victim in

their car intending to separate the victim from his money, and

drove to a remote place where all three got out. Petitioner hit

Case 2:04-cv-01623-MCE -PAN Document 18 Filed 07/13/05 Page 1 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

the victim in the mouth with his fist. Co-defendant beat the

victim with a tire iron until he was unmoving. Petitioner took

the victim’s wallet. Petitioner’s co-defendant ran over the

victim with the car. The victim died. Both petitioner and the

co-defendant gave statements to police that although they

intended to obtain the victim’s money they did not plan to use

force and they attacked him only because he was belligerent and

insulting. 

Petitioner claims his lawyer, now deceased, provided

ineffective assistance.

Petitioner’s conviction was final April 3, 1998, 60 days

after the time to seek direct review ended. Cal. Rules of Court,

Rule 31(a). The limitation period expired one year later, April

2, 1999, over two years before petitioner first sought habeas

relief in the superior court on October 22, 2001. State habeas

claims were denied by the California Supreme Court September 17,

2003, and petitioner filed this federal action August 11, 2004. 

Respondent moved November 19, 2004, to dismiss the petition

as barred by the limitation statute. Petitioner opposed,

asserting his delay in seeking habeas relief should be excused

because he is “actually innocent” of first degree felony-murder

and he is entitled to equitable tolling.

This court may review petitioner’s claim, even if untimely,

if petitioner can establish that the constitutional error in his

plea colloquy has probably resulted in the conviction of one who

is actually innocent. Bousley v. United States, 523 U.S. 614,

Case 2:04-cv-01623-MCE -PAN Document 18 Filed 07/13/05 Page 2 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

623 (1998), quoting Murray v. Carrier, 477 U.S. 478 (1986). To

establish actual innocence, petitioner must demonstrate that, in

light of all the evidence, it is more likely than not that no

reasonable juror would have convicted him. Id., quoting Schlup v.

Delo, 513 U.S. 298, 327-28 (1995). 

In Bousley, the federal habeas petitioner contended that his

guilty plea was not intelligently made because neither he, his

counsel, nor the court correctly understood the essential

elements of the charged crime of “using” a firearm in violation

of 18 U.S.C. § 924(c)(1). 523 U.S. at 617-18. Petitioner had

appealed his sentence but had not challenged the validity of his

plea. Id. His petition to modify his sentence under § 2255 was

dismissed in the district court and the court of appeal affirmed

the order of dismissal. Id. The Supreme Court noted that

petitioner’s claim that his plea was not voluntarily and

intelligently made was procedurally barred because petitioner did

not raise it on appeal. Id. The Court then remanded the case

for the district court to address whether the procedural bar was

excused based on actual innocence, stating:

It is important to note in this regard that “actual

innocence” means factual innocence, not mere legal

insufficience. See Sawyer v. Whitley, 505 U.S. 333,

339 . . . (1992). In other words, the Government is

not limited to the existing record to rebut any showing

that petitioner might make. Rather, on remand, the

Government should be permitted to present any

admissible evidence of petitioner’s guilt even if that

evidence was not presented during petitioner’s plea

colloquy . . . In cases where the Government has

forgone more serious charges in the course of plea

bargaining, petitioner’s showing of actual innocence

must also extend to those charges.

Case 2:04-cv-01623-MCE -PAN Document 18 Filed 07/13/05 Page 3 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

Bousley, 523 U.S. at 623-24.

Petitioner contends he is “actually innocent” of firstdegree felony murder because he intended to commit larceny, not

the predicate offense of robbery as required under California

law. Penal Code §§ 190.2 (c) & (d). He argues he and codefendant concocted only a nebulous plan to separate the victim

from his money, but never intended to do so by force or fear. 

Plaintiff claims they were going to commit larceny by trick,

viz., setting up a phony drug deal, and force was used only when

the victim picked a fight. 

Both petitioner and his co-defendant admitted planning to

“roll” or “rip off” the victim when they enticed him into a car

under the pretext of taking him some place where he could buy

marijuana. They took him to a remote place where all three got

out of the car. No one else was present. It is entirely

implausible they drove him to an isolated place for any purpose

but robbery. 

After the victim was unmoving petitioner took his wallet

from his pocket and fled with his accomplice, with whom he

divided the victim’s money. Petitioner told an interviewing law

enforcement officer “we shouldn’t have murdered anyone.” 

Petitioner and his co-defendant contradicted one another when

they described what happened. No reasonable juror would have

believed petitioner did not intend to rob the victim and was not

guilty of robbery felony-murder. 

Petitioner further asserts he is entitled to equitable

Case 2:04-cv-01623-MCE -PAN Document 18 Filed 07/13/05 Page 4 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

tolling, but he does not meet his burden to establish it. See

Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002) (once notified

habeas petition is subject to dismissal as untimely under the

limitations period and the record so indicates, petitioner bears 

the burden of establishing statutory or equitable tolling); see

also Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003)

(petitioner must show "extraordinary circumstances" beyond his

control caused the petition’s untimeliness). 

Petitioner contends counsel was lax in failing, before

counsel’s death, to petition the state court for habeas relief

and petitioner was delayed because he had problems obtaining his

client file. Petitioner asserts “counsel expressed . . . his

intention to pursue . . . some manner of post-conviction attack”

and petitioner made “repeated and futile efforts” to communicate

with counsel before his death. Petition at 33. But petitioner

provides neither his own declaration or other evidence to support

his allegations; the only thing offered in support is a March 20,

2001, letter from the State Bar of California referring to a

letter of petitioner’s dated January 28, 2001, letter, forwarding

his file, and stating that counsel was deceased. Petitioner

offers nothing to support a finding by this court that he

reasonably believed counsel would file a timely petition or that

petitioner acted reasonably promptly when he understood that

expectation would be disappointed. He does not meet the due

diligence requirement for statutory tolling, or the

“extraordinary circumstances beyond petitioner’s control”

Case 2:04-cv-01623-MCE -PAN Document 18 Filed 07/13/05 Page 5 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

6

requirement for equitable tolling for any of the period before

April of 1999. Nor does petitioner offer anything to justify the

over-six-month delay after he received his client file March 20,

2001, and before he signed his initial state habeas petition

October 14, 2001. 

Petitioner asserts prison policies limiting law library

access and denying inmates legal assistance entitle him to

equitable tolling. But petitioner fails to offer any specific

explanation why these alleged deprivations caused his to file an

untimely petition. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th

Cir. 2003). No library materials or legal assistance were

necessary for plaintiff to explain he lacked the intent to take

the victim’s money by force. Cf. Whalem/Hunt v. Early, 233 F.3d

1146, 1148 (9th Cir. 2000) (acknowledging that prison law

library’s deficiencies might, in some circumstances, amount to an

“impediment” justifying equitable tolling). The state petition

was over two years late and petitioner fails to show he is

entitled to tolling for any part of that period. Compare Lott v.

Mueller, 304 F.3d 918 (9th Cir. 2002) (remanding for evidentiary

hearing concerning timeliness of petition filed only seven days

late, in light of petitioner’s declaration justifying 82 days of

tolling). Nor does petitioner address why he waited ten months

before coming to this court with his exhausted claims. See Lott,

304 F.3d at 924 (considering whether the few days left after

removal of impediment made it literally impossible for pro se

prisoner to file habeas petition timely). 

Case 2:04-cv-01623-MCE -PAN Document 18 Filed 07/13/05 Page 6 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

7

Petitioner has not established he falls within the actual

innocence exception or that he is entitled to statutory or

equitable tolling of the limitation period. 

Accordingly, the court hereby recommends respondent’s

November 19, 2004, motion to dismiss be granted and this action

be dismissed as untimely.

Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Written objections may be

filed within 20 days of service of these findings and

recommendations. The document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The district

judge may accept, reject, or modify these findings and

recommendations in whole or in part.

Dated: July 12, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

Case 2:04-cv-01623-MCE -PAN Document 18 Filed 07/13/05 Page 7 of 7