Hollins Tizeno v. RAYMOND MADDEN, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOLLINS TIZENO,
Petitioner-Appellant,
v.
RAYMOND MADDEN, Warden,
Respondent-Appellee.
No. 15-56150
D.C. No.
2:12-cv-05157-BRO-RNB
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Beverly Reid O’Connell, District Judge, Presiding
Argued and Submitted March 6, 2019
Pasadena, California
Before: FERNANDEZ and M. SMITH, Circuit Judges, and CHRISTENSEN,**
Chief District Judge.
Petitioner Hollis Tizeno appeals the district court’s order denying his
petition for writ of habeas corpus, arguing that the district court erred by raising
procedural default sua sponte and by finding that he failed to show actual
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.
FILED
MAR 20 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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innocence to overcome procedural barriers pursuant to Schlup v. Delo, 513 U.S.
298 (1995). We have jurisdiction pursuant to 18 U.S.C. § 1291, and we affirm.
1. We have held that the district court retains “discretion to raise procedural
default sua sponte if doing so furthers” the interests of comity, federalism, and
judicial efficiency, as long as the court “give[s] a petitioner notice of the
procedural default and an opportunity to respond to the argument for dismissal.”
Boyd v. Thompson, 147 F.3d 1124, 1127–28 (9th Cir. 1998).
We find these interests furthered in this case. The California Supreme Court
cited In re Clark, 855 P.2d 729, 740–41 (Cal. 1993), in its summary denial of
Tizeno’s petition. As explained in Clark, that court has long imposed “the rule that
absent a change in the applicable law or the facts, [it] will not consider repeated
applications for habeas corpus presenting claims previously rejected,” and “refused
to consider newly presented grounds for relief which were known to the petitioner
at the time of a prior collateral attack on the judgment.” Id. at 740. We need not
determine whether the bar against piecemeal or successive petitions is an adequate
and independent state ground to find that the interests of comity and federalism are
furthered by raising the bar sua sponte. Judicial efficiency also supports raising the
procedural bar. In Tizeno’s opposition to the State’s motion to dismiss, he
specifically conceded that his claims are barred due to California’s procedural rules
regarding piecemeal presentation of claims. In fact, Tizeno cited Clark, quoting,

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“The petitioner cannot be allowed to present his reasons against the validity of the
judgment against him piecemeal by successive proceedings for the same general
purpose.” Id. at 741.
Furthermore, Tizeno had proper notice and an opportunity to respond. In
addition to conceding that his petition was barred by California’s procedural rule
against piecemeal presentation of claims in a previous brief, Tizeno received notice
of the bar and its consequences when the magistrate judge filed his Report and
Recommendations with the district court. Tizeno then had the opportunity to
respond by filing objections to the magistrate judge’s findings. This is sufficient
under Boyd.1
2. Even assuming we review a Schlup claim de novo, Tizeno fails to meet the
Schlup standard. “To be credible, such a[n actual innocence] claim requires
petitioner to support his allegations of constitutional error with new reliable
evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.” Schlup,
513 U.S. at 324 (emphasis added). Tizeno presents only unreliable and incredible
evidence from a witness’s recantation testimony to establish actual innocence.
1 Because we find the district court acted within its discretion in raising the
procedural bar, we do not address whether the State specifically raised the bar
against piecemeal or successive litigation when it generally raised Clark’s
untimeliness bar.

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This cannot meet Schlup’s high standard. See id. at 321 (establishing that the
Schlup gateway is intentionally “‘rare’ and [] only [] applied in the ‘extraordinary
case’”).
AFFIRMED.2
2 We deny Tizeno’s motion to stay and remand the case. Even if his Brady claim
has merit, it faces the same procedural bars as his other claims, and remand would
therefore be futile.

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