Daniel K. Chestang v. D. K. SISTO, Warden

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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL K. CHESTANG,
Petitioner - Appellant,
v.
D. K. SISTO, Warden,
Respondent - Appellee.
No. 09-17621
D.C. No. 2:07-cv-01173-LKK-
GGH
MEMORANDUM*
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.***
FILED
JUN 11 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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-

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We reach this conclusion regardless of whether we review Chestang’s1
actual innocence claim de novo or under AEDPA’s highly deferential standard.
See 28 U.S.C. § 2254(d).
Chestang claims that his guilty plea was involuntary because he suffered2
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
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. First, Chestang turned himself into the police and pleaded1
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

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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

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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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