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United States District Court

Eastern District of California 

Lionell Tholmer,

Petitioner, No. Civ. S 04-2491 FCD PAN P

vs. Findings and Recommendations

C. M. Harrison,

Respondent.

-oOoPetitioner is a state prisoner without counsel challenging

his 1993 Yolo County conviction of murder with special

circumstances. The jury reached a verdict of death but the trial

judge reduced the sentence to life without possibility of parole.

Petitioner murdered Cynthia Sparpana and her three-year-old

daughter, Danyel, and later murdered John Meadows and attempted

to pin blame on Meadows for the Sparpana murders. In Tholmer v.

Gomez, Civ. S 95-1901 DFL GGH P, this court, after appointing

counsel for petitioner, upheld petitioner’s conviction for 

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murdering Meadows. The court addressed the Sparpana convictions

in Tholmer v. Castro, Civ. S 98-2069 FCD PAN P, and, after

appointing counsel for petitioner, dismissed the petition as

partially unexhausted.

Petitioner filed his present petition November 22, 2004. 

June 30, 2005, respondent moved to dismiss it as untimely. 

Petitioner opposed August 29, 2005.

Petitioner’s conviction became final May 19, 1995. The

limitation period began to run April 24, 1996, with enactment of

the Anti-Terrorism and Effective Death Penalty Act. Calderon v.

United States District Court (Beeler), 128 F.3d 1283, 1286 (9th

Cir. 1997). Petitioner permitted 358 days to expire before

filing his first state habeas petition. The limitation period

expired April 2, 1999 (seven days after that round of litigation

was completed). 

Petitioner claims the benefit of tolling; it is his burden

to establish it. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir.

2002). He asserts tolling based on newly discovered evidence. 

28 U.S.C. § 2244(d)(1)(D). For example, he says evidence the

killer was left-handed initially was disclosed in federal habeas

discovery in case Civ. S 98-2069 FCD PAN P. See April 15, 2005,

motion re false records at 17. However, petitioner discovered

the evidence before November 14, 2000, (see November 14, 2000,

order in Civ. S 98-2069 FCD PAN P), and he fails to show he

deserves tolling subsequent to that date. Similarly, petitioner

claims he discovered the factual predicate of juror misconduct

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claims when he received a copy of the “Smyth Confidential

Memorandum” in April 2002 but he fails to show subsequent tolling

until the claim was filed in November 2004. Petitioner

references “newly” discovered evidence concerning the murder

weapon, viz., a stolen gun report he received June 27, 2005. See

July 11, 2005, “notice of exonerating newly [discovered] evidence

and request to stay proceedings.” Any claim based on such

evidence is unexhausted. At any rate, that the gun was reported

stolen in January 1985 would not preclude it having been used to

kill Cynthia Sparpana in November of that year. Petitioner fails

to establish timeliness based on tolling. 

Nor does he show the time-bar should be waived because he is

innocent. To pass through the “actual innocence gateway,”

permitting a district court to reach the merits of an otherwisebarred constitutional claim, a petitioner must “‘support his

allegations of constitutional error with new reliable evidence .

. . that was not presented at trial.’” Majoy v. Roe, 296 F.3d

770, 776 (9th Cir. 2002), quoting Schlup v. Delo, 513 U.S. 298,

324 (1995)(emphasis in Majoy).

Evidence against petitioner at trial included the testimony

of officer Kane, stating petitioner admitted in a Placer County

jail interview to murdering Meadows and insisted Meadows had

murdered the Sparpanas. Petitioner argues evidence discovered

after conviction shows inaccuracies in Kane’s testimony about how

the interview came to occur and other collateral matters. 

Evidence that “significantly undermines or impeaches the

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credibility” of trial witnesses is sufficient to take a

petitioner through the Schlup gateway if “all the evidence,

including new evidence, makes it more likely than not that no

reasonable juror would have found petitioner guilty beyond a

reasonable doubt.” Gandarela v. Johnson, 286 F.3d 1080, 1086

(9th Cir. 2002) (internal quotation omitted). Here, evidence

against petitioner was “reasonable, credible and solid,” (see

Opinion of California Court of Appeal affirming petitioner’s

conviction at 19) and nothing presently offered even cracks the

hinge on the actual innocence gateway. 

Accordingly, the court hereby recommends respondent’s June

30, 2005, motion to dismiss be granted and the petition 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: November 22, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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