Hovsepian v. Gastelo

Background

Armik A. Hovsepian, an inmate at California Men’s Colony–East, filed a self-represented petition under 28 U.S.C. § 2254 challenging his 1994 conviction for attempted murder. The petition alleged that his retrial after an earlier conviction for assault, based on the same conduct, violated the Double Jeopardy Clause. It also alleged factual innocence, based on Hovsepian’s assertion that the first trial ended in a mistrial and showed insufficient evidence for an attempted-murder conviction.

The court had initially dismissed the petition as untimely on April 30, 2020, after receiving no response to its order directing Hovsepian to explain why the petition should not be dismissed. Hovsepian later stated that he had filed a response in March 2020 and submitted the response again. The court treated his letter as a request to reopen the case and vacate the earlier dismissal and judgment.

Statute of limitations

The court applied the Antiterrorism and Effective Death Penalty Act of 1996, which generally gives a state prisoner one year to file a federal habeas petition after the conviction becomes final. The court assumed, favorably to Hovsepian, that the limitations period was paused until February 25, 1998, when his first state collateral proceedings ended. Under that assumption, the deadline expired on February 25, 1999. Hovsepian filed the federal petition on July 31, 2019, making it more than 20 years late.

The court found no basis for a later start date or additional statutory tolling. It also rejected equitable tolling, which can extend a deadline when a person has pursued rights diligently but an extraordinary circumstance prevented timely filing. The court found that Hovsepian had known of the claims since at least 1998 and had not shown either the required diligence or an extraordinary circumstance that made timely filing impossible.

Actual-innocence exception

The court also considered whether the “miscarriage of justice” exception allowed review of the late petition. Under the governing federal standard, a petitioner must present new reliable evidence—such as scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—not presented at trial, showing that he is probably actually innocent. The court found that Hovsepian presented no such new evidence. Instead, his actual-innocence argument relied on legal arguments about double jeopardy, the mistrial, and a state procedural bar.

Disposition

The court GRANTED Hovsepian’s request to reopen the case, VACATED the April 30, 2020 order of dismissal and judgment, and REOPENED the action. After considering his response, it again DISMISSED the petition as untimely, DENIED a certificate of appealability, directed entry of judgment in favor of Gastelo, and ordered the case closed. The court did not reach the underlying double-jeopardy or factual-innocence claims.