(HC) Velasco v. Biter, No. 1:2011cv01952 - Document 18 (E.D. Cal. 2012)

Court Description: ORDER Granting Respondent's Motion To Dismiss The Petition (Doc. 13 ), ORDER Dismissing The Petition With Prejudice (Doc. 1 ) And Directing The Clerk To Enter Judgment, ORDER Declining To Issue A Certificate Of Appealability, signed by Magistrate Judge Barbara A. McAuliffe on 6/5/2012. CASE CLOSED. (Fahrney, E)

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(HC) Velasco v. Biter Doc. 18 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 JUAN CARLOS SANTIAGO VELASCO, ) ) Petitioner, ) ) ) v. ) ) M. D. BITER, ) ) Respondent. ) ) ) 1:11-cv—01952-BAM-HC ORDER GRANTING RESPONDENT’S MOTION TO DISMISS THE PETITION (DOC. 13) ORDER DISMISSING THE PETITION WITH PREJUDICE (DOC. 1) AND DIRECTING THE CLERK TO ENTER JUDGMENT ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 17 18 Petitioner is a state prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2254. 21 parties have consented to the jurisdiction of the United States 22 Magistrate Judge to conduct all further proceedings in the case, 23 including the entry of final judgment, by manifesting their 24 consent in writings signed by the parties or their 25 representatives and filed by Petitioner on December 7, 2011, and 26 on behalf of Respondent on January 13, 2012. 27 28 Pursuant to 28 U.S.C. § 636(c)(1), the Pending before the Court is Respondent’s motion to dismiss the petition as untimely, which was filed on January 27, 2012. 1 Dockets.Justia.com 1 Respondent lodged supporting documents in connection with the 2 motion. 3 2012. Petitioner filed opposition to the motion on March 15, No reply was filed. 4 I. 5 Respondent has filed a motion to dismiss the petition on the 6 7 Motion to Dismiss for Untimeliness ground that the petition was untimely filed. Rule 4 of the Rules Governing Section 2254 Cases (Habeas 8 Rules) allows a district court to dismiss a petition if it 9 “plainly appears from the face of the petition and any exhibits 10 annexed to it that the petitioner is not entitled to relief in 11 the district court....” 12 In the Ninth Circuit, respondents have been allowed to file 13 a motion to dismiss pursuant to Rule 4 instead of an answer if 14 the motion to dismiss attacks the pleadings by claiming that the 15 petitioner has failed to exhaust state remedies or has violated 16 the state’s procedural rules. 17 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion 18 to dismiss a petition for failure to exhaust state remedies); 19 White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 20 4 to review a motion to dismiss for state procedural default); 21 Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) 22 (same). 23 the Court orders the respondent to respond, and the Court should 24 use Rule 4 standards to review a motion to dismiss filed before a 25 formal answer. 26 See, e.g., O’Bremski v. Maass, 915 Thus, a respondent may file a motion to dismiss after See, Hillery, 533 F. Supp. at 1194 & n.12. In this case, Respondent's motion to dismiss addresses the 27 timing of the filing of the petition. 28 pertinent to the motion are mainly to be found in copies of the 2 The material facts 1 official records of state judicial proceedings which have been 2 provided by the parties, and as to which there is no factual 3 dispute. 4 because Respondent's motion to dismiss is similar in procedural 5 standing to a motion to dismiss for failure to exhaust state 6 remedies or for state procedural default, the Court will review 7 Respondent’s motion to dismiss pursuant to its authority under 8 Rule 4. 9 10 II. Because Respondent has not filed a formal answer and The Limitations Period On April 24, 1996, Congress enacted the Antiterrorism and 11 Effective Death Penalty Act of 1996 (AEDPA), which applies to all 12 petitions for writ of habeas corpus filed after its enactment. 13 Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 14 F.3d 1484, 1499 (9th Cir. 1997). 15 for writ of habeas corpus on July 9, 2008. 16 applies to the petition. 17 Petitioner filed his petition Thus, the AEDPA The AEDPA provides a one-year period of limitation in which 18 a petitioner must file a petition for writ of habeas corpus. 19 U.S.C. § 2244(d)(1). 20 proceedings for collateral review as a basis for tolling the 21 running of the period. 22 23 It further identifies the pendency of some As amended, subdivision (d) provides: (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of –- 24 25 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 26 27 28 28 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from 3 1 filing by such State action; 2 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 3 4 5 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 6 7 8 9 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 10 28 U.S.C. § 2244(d). 11 III. Factual Summary 12 In the petition filed here, Petitioner challenges his 13 conviction of assault with a deadly weapon and with force likely 14 to produce great bodily injury, and his sentence of seventeen 15 years that was enhanced for Petitioner’s personal infliction of 16 great bodily injury and his commission of the offense for the 17 benefit of a criminal street gang in violation of Cal. Pen. Code 18 §§ 245(a)(1), 186.22(b)(1)(c), and 12022.7(a). (Pet., doc. 1, 1- 19 2, 6-15.) 20 Petitioner was sentenced in the Merced County Superior Court 21 (MCSC) on June 17, 2005. (LD 1.) 22 On December 12, 2006, the Court of Appeal of the State of 23 California, Fifth Appellate District (CCA) affirmed the judgment 24 on direct appeal. (LD 2, 10.) 25 Petitioner filed a petition for review in the California 26 Supreme Court (CSC) on January 23, 2007, which was dismissed on 27 September 12, 2007, in light of People v. Black, 41 Cal.4th 799 28 4 1 (2007). 2 suggesting that Petitioner sought certiorari; Petitioner states 3 in his opposition that his direct appeal concluded on December 4 12, 2007, in light of the ninety-day period for filing a petition 5 for writ of certiorari. 6 (LD 3-4.) There is no evidence before the Court (Opp., doc. 17, 1:24-26.) On August 10, 2009, Petitioner filed1 a petition for writ of 7 habeas corpus in the MCSC. 8 on January 4, 2010, because 1) in the absence of an exception to 9 the general rule, reconsideration of all grounds for relief that (LD 5, 1.) The petition was denied 10 could have been raised on appeal but were not so raised was 11 barred; and 2) all twenty-two grounds alleged in the petition 12 were untimely, and Petitioner had failed to explain meritoriously 13 the reasons for his considerable delay in seeking habeas relief. 14 (LD 6, 1-2.) 15 On December 24, 2009, Petitioner filed a petition for writ 16 of habeas corpus in the CCA. 17 the CCA denied the petition without any statement of reasoning or 18 citation of authority. 19 (LD 7, 1.) On January 21, 2010, (LD 8.) On January 25, 2010, Petitioner filed another petition for 20 21 1 22 23 24 25 26 27 28 Under the mailbox rule, a prisoner's pro se habeas petition is "deemed filed when he hands it over to prison authorities for mailing to the relevant court." Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); Houston v. Lack, 487 U.S. 266, 276 (1988); see, Rule 3(d) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules). The mailbox rule applies to federal and state petitions alike. Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citing Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003), and Smith v. Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003)). It has been held that the date the petition is signed may be inferred to be the earliest possible date an inmate could submit his petition to prison authorities for filing under the mailbox rule. Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S. 408 (2005). The Petitioner’s filings have been given the benefit of the mailbox rule to the extent possible based on the documentation before the Court. 5 1 writ of habeas corpus in the CCA, which denied the petition 2 without any statement of reasoning or citation of authority. 3 9-10.) 4 (LD On March 16, 2010, Petitioner filed a petition for writ of 5 habeas corpus in the CSC, which denied the petition with 6 citations to In re Robbins, 18 Cal.4th 770, 780 (1998) and People 7 v. Duvall, 9 Cal.4th 464, 474 (1995). 8 9 10 (L.D. 11, 35; LD 12.) On September 28, 2011, Petitioner filed the petition that is presently pending before the Court. The proceeding was transferred to this Court on November 23, 2011. 11 IV. 12 Pursuant to § 2244(d)(1)(A), the limitation period runs from 13 14 The Running of the Limitations Period the date on which the judgment became final. Under § 2244(d)(1)(A), the “judgment” refers to the sentence 15 imposed on the petitioner. 16 57 (2007). 17 17, 2005. 18 Burton v. Stewart, 549 U.S.147, 156- The last sentence was imposed on Petitioner on June Under § 2244(d)(1)(A), a judgment becomes final either upon 19 the conclusion of direct review or the expiration of the time for 20 seeking such review in the highest court from which review could 21 be sought. 22 2001). 23 upon either 1) the conclusion of all direct criminal appeals in 24 the state court system, followed by either the completion or 25 denial of certiorari proceedings before the United States Supreme 26 Court; or 2) if certiorari was not sought, then by the conclusion 27 of all direct criminal appeals in the state court system followed 28 by the expiration of the time permitted for filing a petition for Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. The statute commences to run pursuant to § 2244(d)(1)(A) 6 1 writ of certiorari. 2 Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied 525 3 U.S. 1187 (1999)). 4 Wixom, 264 F.3d at 897 (quoting Smith v. Here, Petitioner’s direct review concluded when his petition 5 for review was dismissed by the California Supreme Court on 6 September 12, 2007. 7 days thereafter on December 11, 2007, when the period for seeking 8 a writ of certiorari concluded. 9 1157, 1158-59 (9th Cir. 1999). The time for direct review expired ninety See, Bowen v. Roe, 188 F.3d Thus, the limitations period 10 began to run on December 12, 2007, to expire one year later on 11 December 11, 2008. 12 (9th Cir. 2001) (holding analogously that the correct method for 13 computing the running of the one-year grace period is pursuant to 14 Fed. R. Civ. P. 6(a), in which the day upon which the triggering 15 event occurs is not counted). 16 Patterson v. Stewart, 251 F.3d 1243, 1245-46 The petition was filed here on September 28, 2011. Thus, 17 absent any tolling, the petition shows on its face that it was 18 filed outside the one-year limitations period provided for by the 19 statute. 20 V. 21 Title 28 U.S.C. § 2244(d)(2) states that the “time during Statutory Tolling pursuant to 28 U.S.C. § 2244(d)(2) 22 which a properly filed application for State post-conviction or 23 other collateral review with respect to the pertinent judgment or 24 claim is pending shall not be counted toward” the one-year 25 limitation period. 26 28 U.S.C. § 2244(d)(2). Once a petitioner is on notice that his habeas petition may 27 be subject to dismissal based on the statute of limitations, he 28 has the burden of demonstrating that the limitations period was 7 1 sufficiently tolled by providing pertinent dates of filing and 2 denial, although the state must affirmatively argue that the 3 petitioner failed to meet his burden of alleging the tolling 4 facts; simply noting the absence of such facts is not sufficient. 5 Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002). 6 Here, Petitioner did not file his first state petition for 7 collateral relief until August 10, 2009, eight months after the 8 statutory period had expired on December 11, 2008. 9 statutory period had run by the time any application for 10 11 Thus, the collateral relief was filed in the state courts. Under such circumstances, the pendency of state applications 12 has no tolling effect. 13 (9th Cir. 2003) (filing a state collateral petition after the 14 running of the one-year limitations period of the AEDPA but even 15 before the expiration of the pertinent state period of finality 16 did not toll the running of the period under § 2244(d)(2)). 17 Ferguson v. Palmateer, 321 F.3d 820, 823 Respondent further notes that in any event, the state courts 18 expressly found that some of the petitions filed by Petitioner 19 were untimely, and thus they could not have tolled the running of 20 the statutory period because they were not properly filed. 21 An application for state post-conviction or other collateral 22 review is “properly filed” within the meaning of 28 U.S.C. 23 § 2244(d)(2) when its delivery and acceptance are in compliance 24 with the applicable laws and rules governing filings, such as 25 provisions concerning the form of the document, the time limits 26 upon its delivery, the court and office in which it must be 27 lodged, and the requisite filing fee. 28 4, 8 (2000). Artuz v. Bennett, 531 U.S. State time limits are conditions to filing, which 8 1 render a petition not “properly filed” within the meaning of 28 2 U.S.C. § 2244(d)(2). 3 a state court rejects a petition for post-conviction relief as 4 untimely, the petition is not a “properly filed” application for 5 post-conviction or collateral review within the meaning of § 6 2244(d)(2), and thus it does not toll the running of the 7 limitation period. 8 California’s standards, none of the time before or during the 9 court’s consideration of the petition is statutorily tolled. 10 White v. Martel, 601 F.3d 882, 883-84 (9th Cir. 2010), cert. 11 denied, 131 S.Ct. 332 (2010). 12 Pace v. DiGuglielmo, 544 U.S. at 417. Id. When Where a petition is untimely under Here, the MCSC denied Petitioner’s first habeas petition 13 with an express determination that the claims were all untimely 14 and were presented without any meritorious reason for 15 Petitioner’s considerable delay. 16 with its finding of untimeliness, the MCSC cited In re Robbins, 17 18 Cal.4th 770, 780-781 (1998). 18 denied the second petition, which contained the same claims as 19 the first. 20 third petition, which contained all the claims contained in the 21 second petition. 22 appellate court did not silently disregard the last reasoned 23 opinion of the MCSC (LD 3), in which the court found the petition 24 was procedurally deficient. 25 797, 803-06 (1991). 26 determinations that the petitions were untimely. 27 28 (LD 5, 7, 8.) (LD 6, 1-2.) (Id. at 2.) In connection The CCA summarily The CCA likewise summarily denied the (LD 7, 9, 10.) It is presumed that the state Cf. Ylst v. Nunnemaker, 501 U.S. Thus, the CCA’s silent denials constituted The CSC then denied the fourth habeas petition with a citation to Robbins, 18 Cal.4th at 780. 9 (LD 12.) Robbins stands 1 for the proposition that delayed and repetitious claims will not 2 be condoned; a citation to Robbins at 780 means that the petition 3 was untimely. 4 2007). 5 Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. Therefore, in addition to having been filed too late to toll 6 the statute, Petitioner’s state petitions were not properly 7 filed, and thus they did not toll the limitations period for 8 purposes of 28 U.S.C. § 2244(d)(2). 9 at 414-15. 10 Pace v. DiGulielmo, 544 U.S. It is concluded that the running of the limitations period 11 was not tolled by Petitioner’s state court filings pursuant to 12 § 2244(d)(2). 13 14 VI. Equitable Tolling The one-year limitation period of § 2244 is subject to 15 equitable tolling where the petitioner has been diligent, and 16 extraordinary circumstances, such as the egregious misconduct of 17 counsel, have prevented the petitioner from filing a timely 18 petition. 19 (2010). 20 circumstances were the cause of his untimeliness and that the 21 extraordinary circumstances made it impossible to file a petition 22 on time. 23 The diligence required for equitable tolling is reasonable 24 diligence, not “maximum feasible diligence.” 25 130 S.Ct. at 2565. 26 Holland v. Florida, – U.S. –, 130 S.Ct. 2549, 2560 The petitioner must show that the extraordinary Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). Holland v. Florida, “[T]he threshold necessary to trigger equitable tolling 27 [under AEDPA] is very high, lest the exceptions swallow the 28 rule.” Spitsyn v. Moore, 345 F.3d 796, 799 (quoting Miranda v. 10 1 2 Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). In his opposition, Petitioner asserts in an unsworn 3 statement that he had tried to file a petition for writ of habeas 4 corpus in the MCSC in May 2007, but the petition was returned 5 with a notation that it was on the wrong form, and with a 6 direction to submit it on the current form. 7 that he complied with the direction; the court enclosed a 8 “current 2009 Judicial form,” which Petitioner resubmitted “in 9 all diligence.” (Opp., doc. 17, 1-2.) Petitioner states Although Petitioner 10 asserts generally that he was diligent, Petitioner does not 11 provide any facts that would explain why he delayed over two 12 years before filing another petition in the MCSC in August 2009. 13 Petitioner argues that his appellate counsel refused to 14 submit on appeal the additional claims that Petitioner seeks to 15 raise here. 16 ineffective assistance of counsel constituted an extraordinary 17 circumstance. Petitioner may be attempting to assert that the 18 Reference to the opinion of the CCA in the direct appeal 19 shows that the assault of which Petitioner was convicted involved 20 Petitioner’s knocking the victim’s red hat off his head and 21 ordering the victim to take off his red jacket because Petitioner 22 did not like the victim’s wearing red on Petitioner’s street. 23 short time later, Petitioner again encountered the victim, who 24 had put his jacket back on after having removed it for 25 Petitioner. 26 ran to the victim, who again removed his jacket. 27 swung at the victim and missed; the victim hit Petitioner, who 28 fell. A Petitioner and a companion exited their vehicle and Petitioner Petitioner’s companion threw a beer at the victim and 11 1 attacked him, but Petitioner’s companion was punched and knocked 2 to the ground by the victim. 3 victim and stabbed him on the side, and Petitioner’s companion 4 stabbed the victim on his other side; one of the assailants was 5 observed by the victim carrying a five-inch-long boot knife. 6 Petitioner and his companion ran off and drove away. 7 3.) 8 9 Petitioner than ran up behind the (LD 2, 2- The victim’s identification of Petitioner in a photographic line-up was certain because the victim had been in the same 10 grade, and in some of the same classes, as Petitioner in high 11 school. 12 time of the attack identified Petitioner and Petitioner’s 13 companion. 14 and his co-participant because he had grown up with Petitioner 15 and had attended the same school; he had also seen Petitioner 16 around town a lot. 17 Further, persons who had accompanied the victim at the One of the victim’s companions knew both Petitioner (LD 2, 4.) The claims which Petitioner seeks to raise here that were 18 not raised on appeal primarily concern alleged judicial bias and 19 erroneous rulings as well as the prosecution’s failure to 20 disclose, or untimely disclosure of, information that related to 21 impeachment of Petitioner’s alibi witness, and a stipulation to 22 be revealed to the jury regarding this information. 23 information related to the defense witness’s having allegedly 24 attacked a child a year and one-half before the trial. 25 The (LD 5.) The record before the Court does not reveal counsel’s 26 reasons for failing to raise the omitted issues. 27 negligence or excusable neglect on the part of counsel does not 28 warrant equitable tolling. Generally, mere Holland v. Forida, 130 S.Ct. 2549, 12 1 2564. 2 abandonment of the client or a failure to perform essential 3 functions might provide a basis for equitable tolling. 4 However, more egregious misconduct in the nature of Id. Here, it is unknown why appellate counsel did not raise 5 these issues on appeal. 6 concerning the substance of the alibi witness’s knowledge or 7 testimony, or the circumstances relevant to the stipulation, that 8 would support an inference that counsel was engaging in sub- 9 standard conduct in failing to raise these issues on appeal, or Petitioner has not set forth any facts 10 that a failure to raise such issues was prejudicial to 11 Petitioner. 12 (1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). 13 concluded that Petitioner has not demonstrated that his counsel 14 rendered ineffective assistance, let alone egregious misconduct 15 that might warrant equitable tolling. 16 See, Strickland v. Washington, 466 U.S. 668, 687-94 It is Petitioner asserts that he had difficulty obtaining his 17 trial transcripts, which, despite his requests, were not mailed 18 to him until March 2008, which was about six months after the 19 conclusion of his direct appeal. 20 lacked knowledge and suffered unspecified limitations with 21 respect to access to legal materials; further, in the last six 22 weeks before Petitioner submitted his opposition to the instant 23 motion, his custodial institution was on lock-down, and he had no 24 opportunity to visit the law library. Petitioner also asserts that he (Id. at 1-4.) 25 Here, Petitioner proceeded pro se. 26 status is not an extraordinary circumstance. 27 592 F.3d 1046, 1049 (9th Cir. 2010). 28 confusion or ignorance of the law is not alone a circumstance 13 Petitioner’s pro se Chaffer v. Prosper, A pro se petitioner's 1 warranting equitable tolling. 2 1154 (9th Cir. 2006). 3 machine is a routine restriction of prison life and thus is not 4 an extraordinary circumstance. 5 993. 6 not shown how any limitation of access to the law library or to 7 any other materials actually made it impossible for him to file a 8 petition. 9 that establishes that lack of access to specific materials 10 Rasberry v. Garcia, 448 F.3d 1150, Limited access to a law library and copy Ramirez v. Yates, 571 F.3d at Petitioner’s allegations are general, and Petitioner has Thus, Petitioner’s showing differs materially from one precluded timely filing. 11 Further, Petitioner’s filing of numerous petitions in the 12 state courts during his incarceration is inconsistent with his 13 allegations of impossibility. 14 998. 15 question actually caused Petitioner’s inability to file timely a 16 federal habeas application. 17 equitable tolling claim. 18 1034-35 (9th Cir. 2005). 19 Cf., Ramirez v. Yates, 571 F.3d at Petitioner has failed to show that the circumstances in Such a failure warrants denial of an Gaston v. Palmer, 417 F.3d 1030, Likewise, Petitioner has not established his diligence more 20 generally throughout the state court proceedings in attempting to 21 file a timely federal petition. 22 forth affirmative allegations showing his diligent efforts to 23 file the necessary documents. 24 at 1049. 25 seeking equitable tolling to exercise reasonable diligence in 26 attempting to file timely after the extraordinary circumstances 27 begin disrupts the link of causation between the circumstances 28 and the failure to file. Petitioner has failed to set Cf., Chaffer v. Prosper, 592 F.3d It is established that the failure of the person Spitsyn v. Moore, 345 F.3d at 802. 14 1 The Court concludes that Petitioner has not demonstrated 2 extraordinary circumstances or diligence, and thus he is not 3 entitled to equitable tolling of the statutory period. 4 In summary, the Court finds that the facts concerning the 5 various state proceedings are essentially undisputed. 6 petition was filed outside of the one-year statutory period, and 7 Petitioner failed to demonstrate his entitlement to relief from 8 the bar of the statute of limitations. 9 10 The Accordingly, Respondent’s motion to dismiss the petition as untimely filed will be granted. 11 VII. 12 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 13 appealability, an appeal may not be taken to the court of appeals 14 from the final order in a habeas proceeding in which the 15 detention complained of arises out of process issued by a state 16 court. 17 U.S. 322, 336 (2003). 18 only if the applicant makes a substantial showing of the denial 19 of a constitutional right. 20 petitioner must show that reasonable jurists could debate whether 21 the petition should have been resolved in a different manner or 22 that the issues presented were adequate to deserve encouragement 23 to proceed further. 24 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 25 certificate should issue if the Petitioner shows that jurists of 26 reason would find it debatable whether the petition states a 27 valid claim of the denial of a constitutional right and, with 28 respect to procedural issues, that jurists of reason would find 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 15 A 1 it debatable whether the district court was correct in any 2 procedural ruling. 3 (2000). 4 Slack v. McDaniel, 529 U.S. 473, 483-84 In determining this issue, a court conducts an overview of 5 the claims in the habeas petition, generally assesses their 6 merits, and determines whether the resolution was debatable among 7 jurists of reason or wrong. 8 applicant to show more than an absence of frivolity or the 9 existence of mere good faith; however, it is not necessary for an 10 Id. It is necessary for an applicant to show that the appeal will succeed. Id. at 338. 11 A district court must issue or deny a certificate of 12 appealability when it enters a final order adverse to the 13 applicant. 14 Habeas Rule 11(a). Here, because the facts concerning the various state 15 proceedings are undisputed, and because Petitioner failed to 16 demonstrate by specific facts his entitlement to relief from the 17 bar of the statute of limitations, jurists of reason would not 18 find it debatable whether the Court was correct in its ruling. 19 Accordingly, the Court concludes that Petitioner has not 20 made a substantial showing of the denial of a constitutional 21 right, and the Court will decline to issue a certificate of 22 appealability. 23 VIII. 24 Accordingly, it is ORDERED that: 25 1) Respondent’s motion to dismiss the petition is GRANTED; 26 27 28 Disposition and 2) The petition for writ of habeas corpus is DISMISSED WITH PREJUDICE as untimely filed; and 16 1 2 3 4 5 6 3) The Clerk is DIRECTED to enter judgment and close the case; and 4) The Court DECLINES to issue a certificate of appealability. IT IS SO ORDERED. Dated: 10c20k June 5, 2012 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17
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