                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 11 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DANIEL K. CHESTANG,                              No. 09-17621

              Petitioner - Appellant,            D.C. No. 2:07-cv-01173-LKK-
                                                 GGH
  v.

D. K. SISTO, Warden,                             MEMORANDUM *

              Respondent - Appellee.



                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                             Submitted June 10, 2013 **
                              San Francisco, California

Before: O’SCANNLAIN and CALLAHAN, Circuit Judges, and EZRA, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable David A. Ezra, District Judge for the U.S. District
Court for Hawaii, sitting by designation.
      In 1993, Petitioner-Appellant Daniel K. Chestang pleaded guilty to the first-

degree murder of Marlena Brooks and Sydney Newman in Sacramento, California.

In 1994, he was sentenced to 60 years to life. Chestang argues that a 1993

psychological report and a 2004 declaration from his co-defendant confessing to

the murders establish his actual innocence, thereby making his 2007 federal habeas

petition timely under McQuiggin v. Perkins, No. 12-126, 569 U.S. -- , 2013 WL

2300806 (May 28, 2013) and Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en

banc). We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and

2253, and we affirm the district court’s dismissal of Chestang’s habeas petition as

untimely.

      1.     The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28

U.S.C. §§ 2241-2255, requires a prisoner to file his federal habeas petition within

one year of the date the judgment against him becomes final. See 28 U.S.C.

§ 2244(d)(1)(A). For prisoners whose judgments become final before AEDPA

became effective on April 24, 1996, the limitations period commenced on that date

and expired, absent tolling, on April 24, 1997. Gaston v. Palmer, 417 F.3d 1030,

1033 (9th Cir. 2005). In Perkins, however, the Supreme Court held that actual

innocence, “if proved,” serves as an exception to AEDPA’s statute of limitations.

2013 WL 2300806, at *3; see also Lee, 653 F.3d at 932. But “tenable actual-


                                          2
innocence gateway pleas are rare,” as a habeas petitioner “‘must show that it more

likely than not that no reasonable juror would have convicted him in light of the

new evidence.’” Perkins, 2013 WL 2300806, at *3, *11 (quoting Schlup v. Delo,

513 U.S. 298, 327 (1995)).

      2.     Chestang’s actual innocence claim does not meet this threshold, for at

least three reasons.1 First, Chestang turned himself into the police and pleaded

guilty to the murders while being represented by counsel. Chestang specifically

pleaded guilty to shooting the gun. While these facts may not outright preclude

Chestang from claiming actual innocence, see Bousley v. United States, 523 U.S.

614, 623-24 (1998) (remanding for consideration of actual innocence claim where

petitioner pleaded guilty), they seriously undermine the notion that he sat idly in

the car while co-defendant Phillip Mann shot Brooks and Newman.2



      1
        We reach this conclusion regardless of whether we review Chestang’s
actual innocence claim de novo or under AEDPA’s highly deferential standard.
See 28 U.S.C. § 2254(d).
      2
        Chestang claims that his guilty plea was involuntary because he suffered
from schizophrenia or mania. The state courts reasonably rejected this argument
because the psychological evaluation on which Chestang relies stated that
Chestang might have been malingering instead of mentally ill; the doctor who
prepared the report concluded that Chestang’s actions were “premeditated,” if not
“deliberated;” and the trial court, which considered the report, found there was
“ample evidence in the record to show premeditation, deliberation, [and] malice
aforethought.”

                                          3
      Second, Mann’s 2004 declaration, in which Mann claimed responsibility for

the murders, is not credible in the face of Chestang’s admissions immediately after

the shootings. Two friends testified that Chestang, within hours of the murders,

told them that he, not Mann, had shot the victims. When Chestang learned later the

same day that he had shot the wrong people, he again confessed that he had been

the shooter. In addition: Mann told their friends, in Chestang’s presence and

without any objection from Chestang, that Chestang had shot the victims; Chestang

later admitted to his girlfriend that he had committed the shootings; and Chestang’s

own attorney explained that “the evidence in this case was overwhelming and the

most compelling evidence was your own confession of these crimes to 5 or 6 of

your closest friends.”

      Third, actual innocence claims focus on “new” evidence—i.e., “relevant

evidence that was either excluded or unavailable at trial.” Schlup, 513 U.S. at 327-

28. In this case, Chestang’s psychological report was before the trial court when

he pleaded guilty and was sentenced. And while Mann’s declaration may have

been new as of 2004, it concerns events that took place in 1993 and that were

within Chestang’s knowledge. That is, if Mann, not Chestang, shot the victims,

Chestang knew that fact on the night of the murders. He nonetheless told his

friends he was the shooter, turned himself in, pleaded guilty, and served ten years


                                          4
of his prison sentence before asserting that Mann was the shooter. See Perkins,

2013 WL 2300806, at *11 (“Unexplained delay in presenting new evidence bears

on the determination whether the petitioner has made the requisite showing.”).

Assessing “how reasonable [factfinders] would react to the overall, newly

supplemented record,” Lee, 653 F.3d at 929, it is not more likely than not that the

trial court would have rejected Chestang’s guilty plea or that, had Chestang gone to

trial, every juror would have reasonable doubt that Chestang was guilty.

      AFFIRMED.




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