Two-Year Deadline for Petition for Factual Innocence

We receive a lot of calls about filing a petition for factual innocence, so when the following First Appellate Court ruling was published on November 18, 2022, we eagerly read it to understand the most recent ruling on this often misunderstood provision that sounds so attractive. 

At about 11:45 p.m., a fight broke out in the living room.  Three people were stabbed and Ben Floriani was killed.  Several partygoers saw Matthew Timothy O’Day flee after the stabbing.

Police arrived and interviewed partygoers who gave varying accounts of what happened.  Several witnesses said Alex Hopper and Donald Bittner were involved in the attack on Mr. Floriani.

Several hours after police left, Desiree F. went to the police station and voluntarily submitted to an interview in which she described in detail how she saw Mr. O’Day make a stabbing motion toward Mr. Floriani’s chest before fleeing.  She said she was just five or ten feet away.  She told police she was “more than . . . a hundred and ten percent positive.”

Police then arrested Mr. O’Day.  In April 2008, he was then charged in an amended complaint with murder, along with Hopper and Bittner, as well as personal use of a deadly weapon.

Numerous witnesses testified at the preliminary hearing, which was held over several months in the summer of 2008.  The magistrate dismissed the charges against Mr. O’Day.

In September 2020, more than twelve years and nine months after he was arrested and charged with the crime, Mr. O’Day petitioned for a finding of factual innocence under Penal Code § 851.8.  At the outset, he acknowledged that the petition was filed after the expiration of the two-year deadline in § 851.8(l), but argued that there was good cause because he was unaware, until 2018, that he could seek such relief.

In a supporting declaration, Mr. O’Day explained that when he was released from custody, his privately retained attorney warned him that the prosecution could refile charges because “there is no statute of limitations for murder.”  His attorney did not mention a petition for factual innocence when O’Day asked him what he could about his criminal history with a record for arrest for murder.  Mr. O’Day stated in his declaration that had he known about filing a petition for factual innocence at the time, he would have done so immediately.

The declaration also described how in the years that followed, Mr. O’Day recovered from the trauma of the pretrial detention.  In 2014, while working for a sheet metal fabricator, he attempted to deliver ductwork to an Air Force base and was denied entry onto the base because of his arrest.  He thereafter went to the courthouse and got a copy of court paperwork showing the case was dismissed. 

In 2016, he enrolled in law school and in 2018, during his third year of law school, he participated in a criminal justice clinic.  As part of the clinic, he visited clients in prison.  That year, his prison gate clearance was revoked because of his arrest for murder.  At that point, the supervising attorney urged him to consider filing a petition for factual innocence.  

Mr. O’Day said this was the first time he “learned of such a remedy.”  In the fall of 2018, a public defender agreed to file such a petition on his behalf, but it was not filed until two years later.

Mr. O’Day next asserted that he was entitled to a finding of factual innocence because the evidence at the preliminary hearing was inadequate for a holding order and “would not leave a person of ordinary care and prudence to believe there was an honest or even slight suspicion he was guilty.”  Mr. O’Day insisted the lack of credible evidence presented by the prosecution at the preliminary hearing “exonerated him and proved his innocence.”

The judge denied the petition on two grounds.  First, the petition was filed too late and Mr. O’Day had not established good cause why he could not have filed the petition earlier.  There was no legal impediment to doing so and, in fact, he had numerous prior embarrassing reminders of the prior arrest that could serve as inspiration to seek relief. 

Second, he denied the petition on the merits.  He found that Mr. O’Day failed to demonstrate he never should have been subject “to the compulsion of the criminal law, that there was no reasonable cause to arrest him in the first place, or that the record not only raises substantial questions as to guilt, but fully exonerates him.”

Mr. O’Day then appealed to the First Appellate District Court in San Francisco, which affirmed the trial court.  It found there was no abuse of discretion in the ruling by the trial court and gave additional reasons why the trial court was correct.  It explained that Mr. O’Day’s delay in filing was “objectively unreasonable.”  It further stated that O’Day’s counsel should have known about the procedure to petition for factual innocence.

For more information about petitions for factual innocence, please click on the following articles: