Hovsepian v. Gastelo

Background

Armik A. Hovsepian, an inmate at California Men’s Colony–East, filed a petition under 28 U.S.C. § 2254 challenging his 1994 California conviction for two counts of attempted murder with firearm enhancements. He represented himself. The petition asserted that his retrial violated the Double Jeopardy Clause and that he was factually innocent because his first trial ended in a mistrial and, in his view, showed that the evidence was insufficient.

The court had previously ordered Hovsepian to explain why the petition should not be dismissed as untimely. It granted him an extension until March 30, 2020, to respond, but he did not file a response by that deadline.

Timeliness analysis

The court applied the Antiterrorism and Effective Death Penalty Act of 1996, commonly called AEDPA. That law generally gives a state prisoner one year to file a federal petition challenging a state conviction, measured from the date the conviction becomes final after direct review. The court explained that Hovsepian’s conviction became final in 1996, or later if he had sought review by the United States Supreme Court.

The court assumed, for purposes of its analysis, that the deadline was paused until February 25, 1998, when Hovsepian’s first round of state post-conviction proceedings ended. On that assumption, the federal filing deadline expired on February 25, 1999. Hovsepian filed the federal petition on July 31, 2019, making it more than 20 years late.

The court also considered the exception allowing review of an untimely petition when refusing review would cause a fundamental miscarriage of justice because the petitioner is probably actually innocent. To use that exception, a petitioner must provide new, reliable evidence—such as scientific evidence, trustworthy eyewitness accounts, or important physical evidence—that was not presented at trial. Hovsepian did not provide new evidence. Instead, he relied on legal arguments concerning the mistrial, the second prosecution, and the evidence. The court held that he was not entitled to the exception.

Disposition

The court DISMISSED the petition as untimely and as barred by AEDPA’s statute of limitations. It DENIED a certificate of appealability, which is required for an appeal in this context, because it concluded that reasonable judges would not debate the procedural ruling or whether the petition stated a valid constitutional claim. The Clerk was directed to enter judgment in favor of Josie Gastelo and close the case.