Corral v. Yates

Filing 30

ORDER GRANTING 11 Respondent's Motion to Dismiss the Petition; ORDER DENYING Petitioner's Motion for an Evidentiary Hearing (Docs. 21 , 26 ); ORDER DISMISSING PETITION and Directing the Entry of Judgment for Respondent; and ORDER DECLINING to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 9/6/2011. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL CORRAL,

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Petitioner,

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v.
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JAMES YATES, Warden,
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Respondent.
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1:10-cv—01341-SKO-HC
ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS THE PETITION
(DOCS. 11, 1, 6)
ORDER DENYING PETITIONER’S MOTION
FOR AN EVIDENTIARY HEARING (DOCS.
21, 26)
ORDER DISMISSING THE PETITION AND
DIRECTING THE ENTRY OF JUDGMENT
FOR RESPONDENT
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY

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Petitioner is a state prisoner proceeding pro se with a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to

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the jurisdiction of the United States Magistrate Judge to conduct

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all further proceedings in the case, including the entry of final

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judgment, by manifesting their consent in writings signed by the

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parties or their representatives and filed by Petitioner on

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August 2, 2010, and on behalf of Respondent on December 27, 2010.
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Pending before the Court is Respondent’s motion to dismiss the

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petition, which was filed on February 4, 2011.

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2011, Petitioner filed an opposition styled as an objection to

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the motion, and Respondent filed a reply on April 19, 2011.

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Pursuant to the Court’s order, Petitioner filed a sur-reply and

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declaration on July 11, 2011.

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sur-reply on August 29, 2011.

On February 22,

Respondent filed a reply to the

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I.

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Respondent has filed a motion to dismiss the petition on the

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ground that Petitioner filed his petition outside of the one-year

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limitation period provided for by 28 U.S.C. § 2244(d)(1).

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Proceeding by a Motion to Dismiss

Rule 4 of the Rules Governing Section 2254 Cases in the

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United States District Courts (Habeas Rules) allows a district

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court to dismiss a petition if it “plainly appears from the face

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of the petition and any exhibits annexed to it that the

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petitioner is not entitled to relief in the district court....”

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The Ninth Circuit has allowed respondents to file motions to

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dismiss pursuant to Rule 4 instead of answers if the motion to

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dismiss attacks the pleadings by claiming that the petitioner has

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failed to exhaust state remedies or has violated the state’s

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procedural rules.

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420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss

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a petition for failure to exhaust state remedies); White v.

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Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to

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review a motion to dismiss for state procedural default); Hillery

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v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same).

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Thus, a respondent may file a motion to dismiss after the Court

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orders the respondent to respond, and the Court should use Rule 4

See, e.g., O’Bremski v. Maass, 915 F.2d 418,

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standards to review a motion to dismiss filed before a formal

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answer.

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See, Hillery, 533 F. Supp. at 1194 & n.12.

Here, Respondent's motion to dismiss addresses the

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untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1).

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The material facts pertinent to the motion are mainly contained

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in copies of the official records of state judicial proceedings

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which have been provided by Respondent and Petitioner, and as to

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which there is no factual dispute.

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declarations concerning matters pertinent to equitable tolling.

The parties have submitted

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Because Respondent has not filed a formal answer, and because

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Respondent's motion to dismiss is similar in procedural standing

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to a motion to dismiss for failure to exhaust state remedies or

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for state procedural default, the Court will review Respondent’s

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motion to dismiss pursuant to its authority under Rule 4.

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II.

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Petitioner alleges that he is a resident of the Pleasant

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Valley State Prison (PVSP) serving a sentence of sixteen (16)

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years and four (4) months imposed by the Fresno County Superior

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Court in December 2006 upon Petitioner’s conviction of car

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jacking and second degree robbery.

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challenges his sentence, contending that the aggravated term was

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unauthorized absent jury findings made upon proof beyond a

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reasonable doubt.

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decisions upholding the sentence.

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Background

(Pet. 4-5.)

(Pet. 1.)

Petitioner

He also challenges state court
(Id. at 6.)

Documents lodged by Respondent in support of the motion to

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dismiss reflect that Petitioner entered a guilty plea to one

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count of car jacking in violation of Cal. Pen. Code § 215(a) and

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one count of second degree robbery in violation of Cal. Pen. Code
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§ 211.

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with a deadly or dangerous weapon within the meaning of Cal. Pen.

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Code § 12022(b)(1).

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prior prison term, prior serious felony conviction, and prior

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“strike” conviction in violation of Cal. Pen. Code

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§§ 667.5(b), 667(a), 667(b)-(i), and 1170.12(a)-(d).

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Petitioner was initially granted probation.

Petitioner admitted that as to each offense, he was armed

He further admitted special allegations of a

When Petitioner

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failed to meet the conditions of probation, the trial court

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ordered that a previously stayed term be executed on December 18,
(LD 1, 2.)1

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2006.

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the car jacking, Petitioner was sentenced to serve an upper term

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of nine years, one year for the weapon enhancement, and an

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additional five-year term for the prior serious felony

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conviction.

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months for the weapon enhancement were also imposed.

The strike allegation was dismissed, and for

A consecutive one-year term for the robbery and four
(Id.)

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Petitioner appealed the sentence, and on November 6, 2007,

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the Court of Appeal of the State of California, Fifth Appellate

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District (DCA) modified the judgment to stay the term imposed for

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the robbery, and affirmed the judgment as modified.

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(LD 2.)

On December 13, 2007, Petitioner petitioned for review in

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the California Supreme Court which was summarily denied on

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January 16, 2008.

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(LD 3-4.)

On March 15, 2007, Petitioner filed a petition for writ of

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habeas corpus in the trial court.

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petition on May 1, 2007, in an order noting a lack of

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documentation as well as the pendency of Petitioner’s appeal in

(LD 5.)

The court denied the

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“LD” refers to lodged documents submitted by Respondent in support of the motion to dismiss.

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the DCA.

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DCA had jurisdiction, and the trial court lacked jurisdiction.

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(LD 6, 1-2.)

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The trial court stated that because of the appeal, the

On December 19, 2007, Petitioner filed another petition for

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writ of habeas corpus in the trial court.

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14, 2008, the court denied the petition.

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that it lacked jurisdiction to grant the requested relief because

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the petition for review that had been filed by Petitioner in the

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Supreme Court in December 2007 was still pending, and no

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remittitur had issued.

(LD 7.)

On January

The court determined

(LD 8.)

On April 6, 2008, Petitioner filed a third petition for writ

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of habeas corpus in the Fresno County Superior Court, which was

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denied on April 25, 2008.

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(LD 9, 10.)

On June 8, 2008, Petitioner filed a petition for writ of

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habeas corpus in the DCA, which was summarily denied on December

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4, 2008.

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(LD 11, 12.)

On March 29, 2009, Petitioner filed another petition for

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writ of habeas corpus in the DCA, which was summarily denied on

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April 17, 2009.

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(LD 13, 14.)

Petitioner filed a petition for writ of habeas corpus in the

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California Supreme Court on May 8, 2009, which was summarily

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denied on September 30, 2009.

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(LD 15, 16.)

The petition in the instant case was filed on July 26, 2010.
(Pet. 1.)2

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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). 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)).

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III.

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On April 24, 1996, Congress enacted the Antiterrorism and

Statute of Limitations

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Effective Death Penalty Act of 1996 (AEDPA).

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to all petitions for writ of habeas corpus filed after the

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enactment of the AEDPA.

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(1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en

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banc), cert. denied, 118 S.Ct. 586 (1997).

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applies to the instant petition, which was filed in July 2010.

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The AEDPA applies

Lindh v. Murphy, 521 U.S. 320, 327

Thus, the AEDPA

The AEDPA provides a one-year period of limitation in which

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a petitioner must file a petition for writ of habeas corpus.

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U.S.C. § 2244(d)(1).

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As amended, subdivision (d) reads:

(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 –

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(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;

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filing an
violation
States is
filing by

(B) the date on which the impediment to
application created by State action in
of the Constitution or laws of the United
removed, if the applicant was prevented from
such State action;

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(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

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(D) the date on which the factual predicate
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Petitioner did not sign and date the petition he initially filed in this
Court. (Pet., doc. 1, 8.) On July 28, 2010, he submitted a supplemental
document stating that he was sending page 7 of the writ petition that was
filed on July 26, 2010, because he forgot to date and sign the document.
(Doc. 6, 1.) He signed the petition as of July 28, 2010. (Id. at 2.) His
request that the supplemental document be filed with his petition was granted.
(Doc. 7, filed December 7, 2010.) Neither the electronic nor the
paper record contains the envelope within which the petition was mailed.
Thus, application of the mailbox rule is not possible based on the
documentation before the Court.

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of the claim or claims presented could have been
discovered through the exercise of due diligence.

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(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.

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28 U.S.C. § 2244(d).
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Generally the statute of limitations is an affirmative
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defense, and the party claiming the defense bears the burden of
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proof unless the limitations statute is considered to be
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jurisdictional.

Kingman Reef Atoll Investments, L.L.C. v. U.S.,

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541 F.3d 1189, 1197 (9th Cir. 2008); Payan v. Aramark Management
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Services Ltd. Partnership, 495 F.3d 1119, 1122 (9th Cir. 2007).
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The one-year statute of limitations applicable to petitions for
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federal habeas corpus relief by state prisoners is not
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jurisdictional and does not set forth an inflexible rule
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requiring dismissal whenever the one-year clock has run.

Holland

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v. Florida, --U.S.–, 130 S.Ct. 2549, 2560 (2010).

Thus, under

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the AEDPA, the respondent bears the burden of proving that the
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AEDPA limitations period has expired.

Ratliff v. Hedgepeth, 712

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F.Supp.2d 1038, 1050 (C.D.Cal. 1020) (collecting authorities).
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A.

Commencement of the Limitation Period

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Respondent argues that the one-year limitation period of
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§ 2244(d) began to run on the date specified in § 2244(d)(1)(A),
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namely, the date on which the judgment became final by the
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conclusion of direct review or the expiration of the time for
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seeking such review.
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However, Petitioner contends that difficulties he
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encountered in gaining access to the prison law library
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constituted an impediment to filing an application that was

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created by state action and prevented his filing a petition for

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habeas relief.

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§ 2244(d)(1)(B), the limitations period did not begin to run

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until the date on which the impediment was removed.

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13, 6-7.)

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Thus, Petitioner argues that pursuant to

1.

(Opp., doc.

Removal of State-Created Impediment

If an applicant was prevented from filing a federal habeas
petition by an impediment created by state action in violation of

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the Constitution or laws of the United States, then the

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limitations period will commence running from the date on which

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the impediment to filing is removed.

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A circumstance or occurrence argued to have prevented an inmate

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from filing a federal habeas petition pursuant to § 2244(d)(1)(B)

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must violate the Constitution or laws of the United States.

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§ 2244(d)(1)(B); Shannon v. Newland, 410 F.3d 1083, 1088 n.4 (9th

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Cir. 2005).

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alleged impediment actually caused the inmate to be unable to

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file a timely petition.

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61 (9th Cir. 2007).

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28 U.S.C. § 2244(d)(1)(B).

Further, the petitioner must establish that the

Bryant v. Schriro, 499 F.3d 1056, 1060-

Here, Petitioner alleges that the conditions at the law

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library at PVSP are not yet in compliance with the federal

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consent decree in Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.

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1970).

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(Reply, doc. 13, 5.)

The Court takes judicial notice of the docket and document

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number 321 filed on April 20, 2010, in Gilmore v. Lynch, case

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number 3:66-cv-45878-SI, a case before the United States District

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Court for the Northern District of California, in which the court
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consolidated numerous suits of inmates and issued an injunction

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requiring California to maintain a specified list of legal

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literature in all its prisons to help inmates gain access to the

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courts.3

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state correctional department offering a more comprehensive list

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of materials, and it ordered their adoption.

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220 F.3d 987, 992-95 (9th Cir. 987).

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dismissed by the district court with prejudice in 1980, the court

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retained jurisdiction over the 1972 injunction until it granted

In 1972, the court approved regulations proposed by the

Gilmore v. People,

After the Gilmore case was

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the defendants’ motion to terminate the injunction and the

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court’s jurisdiction on April 20, 2010.

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the Gilmore case is no longer pending.

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(Doc. 321, 1-2.)

Thus,

It is now established that there is no abstract,

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freestanding constitutional right to have access to a law library

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or legal assistance, or even to file a timely § 2254 petition;

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rather, there is a right of meaningful access to the courts.

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Lewis v. Casey, 518 U.S. 343, 350-51 (1996); Ramirez v. Yates,

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571 F.3d 993, 1000-1001 (9th Cir. 2009).

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to issue an injunction occurred well in advance of the 1996

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decision in Lewis v. Casey, 518 U.S. 343, which established that

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the right of access to the courts may be satisfied not only by

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law libraries, but also by other methods of providing meaningful

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access, and that a deficient prison law library or legal

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assistance program is not in itself actionable.

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518 U.S. at 350-51.

The decision in Gilmore

Lewis v. Casey,

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The Court may take judicial notice of court records. Fed. R. Evid.
201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993);
Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978),
aff’d, 645 F.2d 699 (9th Cir. 1981).

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The Court concludes that the fact that a prison law library

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might not meet the standards of the injunction in the Gilmore

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case does not by itself establish an unconstitutional denial of

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access to the courts.

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Petitioner alleges generally that prison authorities at PVSP

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have denied library privileges to prisoners with pending habeas

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deadlines, and the library contains inadequate materials and

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computer terminals to accommodate the overcrowded conditions of

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the prison.

All the law books have been removed from the

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library, and there are five (5) computers with different books in

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them that are updated every three (3) months.

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limitations have necessitated reducing staff and instituting

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rolling lock-downs that further limit or preclude library access

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for weeks at a time.

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unspecified program down for one watch every other day, and the

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policy on the down days is to call in only inmates who are

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priority law library users (PLU) with a verified legal deadline

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within thirty days.

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educational programming reduced his library time because he was

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not permitted to leave his work/education station to use the

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library.

(Doc. 13, 5-6.)

(Id. at 6.)

Further, budget

The lock-downs shut an

Petitioner alleges that his

(Id. at 5.)

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Petitioner specifically alleges that the prison was locked

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down from August 15, 2010, to September 8, 2010, and that there

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were other, shorter lock-downs.

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the problems and policies concerning the law library have impeded

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him from being able to file his pleadings any sooner because he

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needed access to legal research materials and help to understand

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them.

He alleges that the totality of

(Id. at 6.)
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The record contains the declaration of R. Kevorkian, who for

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sixteen years has been a librarian at PVSP.

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librarian states that he or she not only manages the library’s

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collections and acquisitions in accordance with state regulations

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and operational procedures, but also supervises work and monitors

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prisoners’ access to the library.

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typically 9:30 a.m. through 3:45 p.m., Monday through Friday.

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During institutional restrictions such as lock-downs, inmates may

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use the library by establishing urgency of need and obtaining

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preferred-legal-user (PLU) access or by being served at their

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cells with photocopied legal research materials, such as case law

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or statutes, prepared upon request.

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conflict, such as a work assignment, may be overridden by

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establishing urgency of need and using the “ducat” or inmate pass

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system, whereby once the assignment office issues a ducat, an

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inmate may be called to the law library during his assigned work

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hours.

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days are given priority status pursuant to departmental and

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prison operations manuals.

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(Doc. 20-1, 1.)

The

The law library hours are

A pre-existing scheduling

Inmates with court-ordered deadlines within thirty (30)

(Id. at 1.)

In March and April 2011, Kevorkian also checked various

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logs, which are described as accurate, including records of

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inmates designated as having PLU status, dates and times of

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inmates’ access to the library, and inmates’ requests for copies.

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The PLU log reflected that Petitioner’s name was not listed and

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that he did not apply for PLU status from December 2008 to the

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present.

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2008 and July 2010, Petitioner accessed the library five times:

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February 17, 2009, for about one-half hour; March 26, 2009, for

The library in/out log reflected that between December

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about an hour; March 9, 2010, for fifty minutes; July 13, 2010,

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for an hour; and July 21, 2010, for an hour and twenty minutes.

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(Id. at 1-2.)

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January 2009 through July 2010 reflected one instance in which

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Petitioner made 104 copies of a § 2254 petition on July 13, 2010.

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To the best of the librarian’s knowledge, Petitioner was not

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denied access to the library from December 2008 to April 18,

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2011, the date of the declaration.

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The log of inmates’ requests for copies from

(Id. at 2.)

In response, Petitioner declared that he sought priority

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library user status (PLU).

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was informed by Kevorkian that unless he had a court order or

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letter stating a deadline, no such status could be granted to

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Petitioner.

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regular status less than half of the hours of 9:30 to 3:30 Monday

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through Friday; access depended upon housing assignment and

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frequent lock-downs.

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“deceptive.”

Whenever he requested PLU status, he

Further, the library was available to inmates in

He further alleged that Kevorkian was

(Doc. 26, 7.)

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Petitioner submitted a declaration of inmate Charles Saenz

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that confirms the difficulty of obtaining access to the library

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except for one day a week because of lock-downs, the need for a

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thirty-day deadline, and yard time schedules.

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characterized library access as first come first served, and not

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guaranteed.

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Hysell, who is involved in numerous court cases, similarly

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confirms Petitioner’s general assertions concerning access to the

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law library, available resources, and the PLU system.

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9.)

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lacked a thirty-day deadline, would be facing a state-created

(Id.)

(Id. at 8.) Saenz

The declaration of inmate Douglas William

(Id. at

Hysell further opines that a layman such as Petitioner, who

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impediment to researching and filing a cognizable petition. (Id.)

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The declaration of inmate William Sutherland, who has four

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ongoing cases and is required to do hours of research, confirms

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the existence of PLU access but indicates that deadlines that are

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set by rules (apparently as distinct from court order) are not a

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basis to allow PLU status.

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(Id. at 10.)

Petitioner’s factual allegations concerning library access

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and lock-downs are general in nature; he does not detail specific

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attempts to gain access to the law library or to use any

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alternative means of research.

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between August 15, 2010, and September 8, 2010, which Petitioner

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specifically details, occurred after the petition was filed here.

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In contrast, the declaration of the librarian demonstrates that

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there were various methods to perform legal research despite

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conflicting work assignments, educational programs, or lock-

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downs.

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2008, when the DCA denied Petitioner’s first petition filed in

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that court for habeas relief, and the filing of the instant

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petition on July 26, 2010, records reflect that Petitioner did

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not seek preferred user status, sought to use the library only

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five times for approximately five hours, and only used copy

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services once to copy a § 2254 petition.

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The one period of lock-down

Further, during the critical period between December 4,

In summary, Petitioner has not shown that he suffered a

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denial of his right of access to the courts or that it resulted

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in any obstruction of his ability to file a habeas petition.

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As set forth above, in the context of § 2244(d)(1)(B),

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there is no abstract, freestanding constitutional right to have

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access to a law library or legal assistance, or even to file a
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1

timely § 2254 petition.

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(1996); Ramirez v. Yates, 571 F.3d 993, 1000-1001.

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is the right of meaningful access to the courts that warrants

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protection.

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from filing a habeas petition within the meaning of §

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2244(d)(1)(B), the petitioner must show that the circumstance

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prevented him from presenting his claims in any form to any

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court.

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limited access to legal materials and copying service, and the

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petitioner is able to file multiple petitions in state courts

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during the pertinent time period, the petitioner has failed to

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establish an impediment by unlawful or unconstitutional state

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action that actually prevented the filing of a timely petition.

14

Id.

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Id.

Lewis v. Casey, 518 U.S. 343, 350-51
Instead, it

To show that a circumstance prevented a petitioner

Where a petitioner establishes only generalized,

Here, as the procedural summary of Petitioner’s state court

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proceedings reflects, Petitioner was able during the pertinent

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time to file numerous state court petitions.

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multiple petitions demonstrates that Petitioner did not suffer a

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deprivation of his constitutional right to meaningful access to

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the courts and thus was not prevented from filing a federal

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habeas petition.

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The filing of

Ramirez v. Yates, 571 F.3d at 1000-1001.

In summary, Petitioner has not alleged facts showing that

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there was unconstitutional state action or that any state action

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resulted in an impediment that actually prevented Petitioner from

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filing a timely habeas petition.

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Petitioner’s argument that § 2244(d)(1)(B) applies.

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Accordingly, the Court rejects

The Court concludes that the portion of § 2244(d)(1) that
governs the commencement of the running of the limitations period
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is § 2244(d)(1)(A), which provides that the limitation period

2

runs from the date on which the judgment became final by the

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conclusion of direct review or the expiration of the time for

4

seeking such review.

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6

2.

Finality of the Judgment

Under § 2244(d)(1)(A), the “judgment” refers to the sentence

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imposed on the petitioner.

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57 (2007).

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December 18, 2006.

10

Burton v. Stewart, 549 U.S. 147, 156-

The last sentence was imposed on Petitioner on

Under § 2244(d)(1)(A), a judgment becomes final either upon

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the conclusion of direct review or the expiration of the time for

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seeking such review in the highest court from which review could

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be sought.

14

2001).

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upon either 1) the conclusion of all direct criminal appeals in

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the state court system, followed by either the completion or

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denial of certiorari proceedings before the United States Supreme

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Court; or 2) if certiorari was not sought, by the conclusion of

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all direct criminal appeals in the state court system and the

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expiration of the time permitted for filing a petition for writ

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of certiorari.

22

Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied, 525

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U.S. 1187 (1999)).

24

sought certiorari from the United States Supreme Court.

Wixom v. Washington, 264 F.3d 894, 897 (9th Cir.

The statute commences to run pursuant to § 2244(d)(1)(A)

Wixom, 264 F.3d at 897 (quoting Smith v.

Neither party has indicated that Petitioner

25

Here, Petitioner’s direct criminal appeals in the state

26

court system concluded when his petition for review was denied by

27

the California Supreme Court on January 16, 2008.

The time

28

permitted for seeking certiorari was ninety days.

Supreme Court

15

1
2

Rule 13; Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).
The Court will apply Fed. R. Civ. P. 6(a) in calculating the

3

pertinent time periods.

4

n.2 (9th Cir. 2008), cert. denied, 130 S.Ct. 2415 (2010).

5

Applying Fed. R. Civ. P. 6(a)(1)(A), the day of the triggering

6

event is excluded from the calculation.

7

period commenced on January 17, 2008, the day following the

8

California Supreme Court’s denial of review.

9

Civ. P. 6(a)(1)(B), which requires counting every day, the

See, Waldrip v. Hall, 548 F.3d 729, 735

Thus, the ninety-day

Applying Fed. R.

10

ninetieth day was April 15, 2008.

11

final within the meaning of § 2244(d)(1)(A) on April 15, 2008.

12

Thus, the judgment became

Therefore, the limitation period began to run on April 16,

13

2008, and concluded one year later on April 15, 2009.

14

Civ. P. 6(a); Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th

15

Cir. 2001) (holding analogously that the correct method for

16

computing the running of the one-year grace period after the

17

enactment of AEDPA is pursuant to Fed. R. Civ. P. 6(a), in which

18

the day upon which the triggering event occurs is not counted).

19

Fed. R.

Because the petition in the instant case was not filed until

20

July 26, 2010, the petition appears on its face to have been

21

filed outside the one-year limitation period provided for by

22

§ 2244(d)(1).

23
24

B.

Statutory Tolling

Title 28 U.S.C. § 2244(d)(2) states that the “time during

25

which a properly filed application for State post-conviction or

26

other collateral review with respect to the pertinent judgment or

27

claim is pending shall not be counted toward” the one-year

28

limitation period.

28 U.S.C. § 2244(d)(2).
16

Once a petitioner is

1

on notice that his habeas petition may be subject to dismissal

2

based on the statute of limitations, he has the burden of

3

demonstrating that the limitations period was sufficiently tolled

4

by providing the pertinent facts, such as dates of filing and

5

denial.

6

(citing Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002),

7

abrogation on other grounds recognized by Moreno v. Harrison, 245

8

Fed.Appx. 606 (9th Cir. 2007)).

9

Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009)

An application for collateral review is “pending” in state

10

court “as long as the ordinary state collateral review process is

11

‘in continuance’-i.e., ‘until the completion of’ that process.”

12

Carey v. Saffold, 536 U.S. 214, 219-20 (2002).

13

this generally means that the statute of limitations is tolled

14

from the time the first state habeas petition is filed until the

15

California Supreme Court rejects the petitioner's final

16

collateral challenge, as long as the petitioner did not

17

“unreasonably delay” in seeking review.

18

Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).

19

of limitations is not tolled from the time a final decision is

20

issued on direct state appeal and the time the first state

21

collateral challenge is filed because there is no case “pending”

22

during that interval.

23

In California,

Id. at 221-23; accord,
The statute

Id.

In Carey v. Saffold, 536 U.S. 214, the Court held that an

24

application is “pending” until it “has achieved final resolution

25

through the State's post-conviction procedures.”

26

application does not achieve the requisite finality until a state

27

petitioner “completes a full round of collateral review.”

28

219-20.

Id. at 220.

Accordingly, in the absence of undue delay, an
17

An

Id. at

1

application for post-conviction relief is pending during the

2

“intervals between a lower court decision and a filing of a new

3

petition in a higher court” and until the California Supreme

4

Court denies review.

5

1048 (9th Cir. 2003).

6

Id. at 223; Biggs v. Duncan, 339 F.3d 1045,

However, when one full round up the ladder of the state

7

court system is complete and the claims in question are

8

exhausted, a new application in a lower court begins a new round

9

of collateral review.

Biggs v. Duncan, 339 F.3d at 1048.

The

10

time between the completion of a first round of collateral review

11

and the beginning of a second round is not tolled.

12

Ramirez, 340 F.3d 817, 820 (9th Cir. 2003), abrogated on other

13

grounds by Evans v. Chavis, 546 U.S. 189 (2006).

14

Delhomme v.

The first two habeas petitions filed by Petitioner in the

15

trial court on March 15, 2007, and December 19, 2007, were filed

16

before the California Supreme Court’s denial on January 16, 2008,

17

of Petitioner’s petition for review of the DCA’s decision

18

modifying and otherwise affirming the judgment on direct appeal.

19

Because the limitations period did not begin to run until even

20

later, after expiration of the time to seek certiorari from the

21

California Supreme Court’s denial of review, Petitioner’s first

22

two habeas petitions were filed and denied before the limitations

23

period commenced running.

24

commencement of the running of the statutory limitation period

25

has no tolling consequence.

26

Thus, the first two habeas petitions filed in the trial court

27

could not, and did not, toll the running of the limitations

28

period.

A collateral action filed before the

Waldrip v. Hall, 548 F.3d 729, 735.

18

1

The next petition for collateral review was Petitioner’s

2

third petition for writ of habeas corpus filed in the trial court

3

on April 6, 2008.

4

Court’s denial of the petition for review on January 16, 2008,

5

and the filing of the third habeas petition on April 6, 2008, is

6

not tolled because there was no case “pending” during that

7

interval.

8

The interval between the California Supreme

Nino v. Galaza, 183 F.3d at 1006.

Although the date of filing the petition in the Superior

9

Court on April 6, 2008, preceded the commencement of the running

10

of the limitation period on April 16, 2008, the petition remained

11

pending and was not denied until April 25, 2008.

12

petition was pending between April 16, 2008, and April 25, 2008,

13

during the running of the limitation period.

14

third petition in the trial court tolled the statute for ten (10)

15

days.

16

Thus, the

Therefore, this

Petitioner next filed a petition for writ of habeas corpus

17

in the DCA on June 8, 2008.

18

between the trial court’s denial of the habeas petition on April

19

25, 2008, and the filing of the DCA petition on June 8, 2008, is

20

tolled because Petitioner was proceeding to complete one full

21

round of collateral review without unreasonable delay.

22

Saffold, 536 U.S. at 219-20.

23

pendency of the DCA petition from June 8, 2008, until the DCA’s

24

denial on December 4, 2008, was tolled.

25

period was tolled from April 16, 2008, when the limitation period

26

commenced to run during the pendency of the third trial court

27

petition, until December 4, 2008, when the DCA denied the first

28

petition, for a total of 233 days.

The reasonably short time period

Carey v.

Likewise, the period of the

19

Thus, the limitation

1

Respondent contends that there should be no “gap” or

2

“interval” tolling for the period between December 4, 2008, when

3

the DCA denied the first petition filed in the DCA, and March 29,

4

2009, when Petitioner filed another petition for habeas relief in

5

the DCA.

6

successive and thus did not constitute part of one continuous

7

round of collateral review.

8

Petitioner unreasonably delayed in bringing the second DCA

9

petition.

Respondent argues that the second DCA petition was

Respondent also argues that

10

Absent a clear direction or explanation from the California

11

Supreme Court about the meaning of the term “reasonable time” in

12

a specific factual context, or a clear indication that a filing

13

was timely or untimely, a federal court hearing a subsequent

14

federal habeas petition must examine all relevant circumstances

15

concerning the delay in each case and determine independently

16

whether the state courts would have considered any delay

17

reasonable so as to render the state petition “pending” within

18

the meaning of § 2244(d)(2).

19

98 (2006).

Evans v. Chavis, 546 U.S. 189, 197-

20

A delay of six months has been found to be unreasonable

21

because it is longer than the relatively short periods of thirty

22

(30) or sixty (60) days provided by most states for filing

23

appeals.

24

also been found to be unreasonable: one hundred forty-six (146)

25

days between the filing of two trial court petitions, Banjo v.

26

Ayers, 614 F.3d 964, 968-69 (9th Cir. 2010), cert. den., 131

27

S.Ct. 3023 (2011); intervals of eighty-one (81) and ninety-two

28

(92) days between the disposition of a writ at one level and the

Evans v. Chavis, 546 U.S. at 201.

20

Shorter delays have

1

filing of the next writ at a higher level, Velasquez v. Kirdland,

2

639 F.3d 964, 968 (9th Cir. 2011); one hundred fifteen (115) and

3

one hundred one (101) days between denial of one petition and the

4

filing of a subsequent petition, Chaffer v. Prosper, 592 F.3d.

5

1046, 1048 (9th Cir. 2010); and unexplained, unjustified periods

6

of ninety-seven (97) and seventy-one (71) days, Culver v.

7

Director of Corrections, 450 F.Supp.2d 1135, 1140 (C.D.Cal.

8

2006).

9

Here, the DCA summarily denied both petitions; thus, the DCA

10

did not expressly determine that any petition was untimely.

11

Petitioner filed the second petition one hundred fifteen (115)

12

days after denial of the previous petition.

13

exceeds the customarily short periods of delay considered

14

reasonable.

15

The delay far

Petitioner seeks to distinguish cases that characterize as

16

unreasonable delays in filing that are longer than thirty or

17

sixty days after a disposition of a previous application.

18

Petitioner argues that his own unreasonable delay occurred, if at

19

all, only once, between December 4, 2008, and March 29, 2009.

20

Petitioner contends that a single delay is not sufficient;

21

rather, repetitive delays are required, and his overall progress

22

through exhaustion of state court remedies was not characterized

23

by unreasonable delay.

24

However, reference to the pertinent statute shows that

25

statutory tolling is permitted for the time “during which a

26

properly filed application” for state post-conviction or other

27

collateral review with respect to the pertinent judgment or claim

28

“is pending....”

28 U.S.C. § 2244(d)(2).
21

The statutory scheme

1

is expressly focused on the pendency of each singular

2

application.

3

are concerned with the pendency and timeliness of each

4

application for review.

5

216-23; Evans v. Chavis, 546 U.S. at 191-201.

Likewise, case authority reveals that the courts

See, e.g., Carey v. Saffold, 536 U.S. at

6

Petitioner argues that he was not filing successive

7

petitions, but rather was simply exhausting a claim concerning

8

the allegedly ineffective assistance of counsel.

9

24.)

(Doc. 13, 1:20-

Petitioner declares that he mistakenly thought that he

10

needed something more than a “postage stamp denial of his

11

petition before proceeding to the next level,” and he thus re-

12

filed a second time in the DCA.

13

the duplicate petitions in the DCA “might have been unnecessary,”

14

but he disagrees that the petitions were successive because they

15

concerned the same grounds and were not a return to the lower

16

courts for another round of habeas.

17

contends that the second DCA petition was an amendment to his

18

first petition to add a claim based on a recent decision of the

19

United States Supreme Court, In re Cunningham, of which he had

20

become aware.

21

(Id. at 3:3-5.)

(Id. at 3.)

He admits that

He also

(Doc. 26, 2:6-14.)

To benefit from statutory tolling, a petitioner must

22

adequately justify a substantial delay.

23

Evans v. Chavis, 546 U.S. at 192-93; Waldrip v. Hall, 548 F.3d

24

729, 734.

25

that is substantially delayed will nevertheless be considered on

26

the merits if the petitioner can demonstrate ‘good cause’ for the

27

delay.”

28

Clark, 5 Cal.4th 750, 783 (1993)).

28 U.S.C. § 2244(d)(2);

Under California law, a habeas “claim or sub-claim

In re Robbins, 18 Cal.4th 770, 805 (1998) (citing In re

22

Petitioner must show

1

particular circumstances, based on allegations of specific facts,

2

sufficient to justify the delay; allegations made in general

3

terms are insufficient.

4

(citing In re Walker, 10 Cal.3d 764, 774 (1974)).

5

measured from the time the petitioner or counsel knew, or

6

reasonably should have known, of the factual information offered

7

in support of the claim and the legal basis for the claim.

8

Robbins, 18 Cal.4th at 787.

In re Robbins, 18 Cal.4th at 787-88, 805
The delay is

In re

9

Here, Petitioner argues that viewing the totality of his

10

pursuit of one full, single round of state habeas review, results

11

in the conclusion that Petitioner was generally diligent.

12

Further, Petitioner was a lay person and was “somewhat confused”

13

about the proper way to proceed.

14

received the denial of his first DCA petition, he filed another

15

petition based on a mistaken, perceived need to obtain more than

16

a summary denial of his petition.

When on December 4, 2008, he

(Opp., doc. 13, 3:2, 2-3.)

17

With respect to Petitioner’s reliance on his pro se status,

18

one generally does not have a constitutional right to counsel in

19

non-capital, state post-conviction proceedings or in the course

20

of discretionary direct review.

21

551, 555-57 (1987); Ross v. Moffitt, 417 U.S. 600, 610-11 (1974).

22

Therefore, there is no constitutional right to counsel in non-

23

capital, federal habeas proceedings.

24

425, 429 (9th Cir. 1993).

25

justification for late filing.

26

(1993).

Pennsylvania v. Finley, 481 U.S.

Bonin v. Vasquez, 999 F.2d

Pro se status is not in itself
In re Clark, 5 Cal.4th 750, 765

27

Petitioner’s allegations concerning access to library

28

facilities, lack of legal and procedural knowledge, and limited
23

1

access to the prison law library are not sufficient to justify a

2

substantial delay where the petitioner was not wholly prevented

3

by lock-downs or prison employment from using the law library.

4

Evans v. Chavis, 546 U.S. at 201.

5

Petitioner’s allegations concerning lock-downs,

6

overcrowding, and conflicts with Petitioner’s educational

7

programming in prison are general in nature and do not

8

demonstrate that for the entire, extended period of delay between

9

December 4, 2008, and March 29, 2009, Petitioner was prevented

10

from filing a petition.

11

Petitioner concerning lock-downs relates to the period from

12

August 15, 2010, through September 8, 2010; otherwise, he refers

13

only to other, shorter lock-downs.

14

of the law librarian establish that there were methods of access

15

(PLU access or use of the ducat system) which Petitioner did not

16

use, and that Petitioner did have access to the library and to a

17

copy service.

18

facts showing good cause for his long delay in filing the second

19

DCA petition.

20

The specific information given by

The more specific allegations

In short, Petitioner has not alleged specific

With respect to the argument that the second petition was

21

not really successive, the Court takes judicial notice of the

22

docket of the DCA in the first habeas proceeding filed there,

23

case number F055452.4

The docket reflects that no order to show

24
25
26
27
28

4
The Court may take judicial notice of facts that are capable of
accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned, including undisputed information posted on official
web sites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331,
333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d
992, 999 (9th Cir. 2010). It is appropriate to take judicial notice of the
docket sheet of a California court. White v Martel, 601 F.3d 882, 885 (9th
Cir. 2010), cert. denied, 131 S.Ct. 332 (2010). The official website of the

24

1

cause issued in that proceeding.

2

Court, Rule 8.387, the denial order filed on December 4, 2008,

3

was thus final on the day it was issued.5

4

first denial was final prior to the filing of the second petition

5

almost four months later.

6

Pursuant to Cal. Rules of

Therefore, the DCA’s

With respect whether or not the second petition was

7

successive, Ninth Circuit authority establishes that if a

8

petitioner is attempting to correct deficiencies of a prior

9

petition, the prisoner is appropriately using state court

10

procedures, and habeas review is still pending.

11

whether tolling is appropriate, a court considers whether the

12

subsequent petition is limited to an elaboration of the facts

13

relating to the claims in the first petition.

14

subsequent petition begins a new round of review, and the gap is

15

not tolled.

16

Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007).

17

subsequent petition simply attempts to correct the deficiencies

18

in the prior petition, it is construed as part of the previous

19

full round of collateral review.

20

969.

21

will toll the statute during the interval that preceded its

22

filing.

23

pursuant to state law, then the period between the petitions is

To determine

If not, the

Banjo v. Ayers, 614 F.3d at 968-69;

Hemmerle v.

However, if the

Banjo v. Ayers, 614 F.3d at

If such a subsequent petition is denied on the merits, it

Id.

If such a subsequent petition was not timely filed

24
25
26
27
28

California state courts is http://www.courts.ca.gov/courts.htm .
5
Rule 8.387 was formerly Rule 8.386, which was adopted effective January
1, 2008, and was renumbered as Rule 8.387 and amended, in respects not
pertinent to the present case, effective January 1, 2009. Pursuant to Cal.
Rules of Court, Rule 8.387(b)(1), a decision of the Court of Appeal in a
habeas corpus proceeding is generally final in that court thirty (30) days
after filing. However, the denial of a petition for writ of habeas corpus
without issuance of an order to show cause is final in the Court of Appeal
upon filing. Rule 8.387(b)(2)(A).

25

1
2

not tolled.

Id.

Here, in the first DCA petition, Petitioner raised the

3

following claims:

4

sentence; 2) the imposition of an unauthorized sentence was in

5

breach of the plea agreement and provided grounds for Petitioner

6

to withdraw his plea; 3) the trial court wrongly denied

7

Petitioner’s motion to substitute appointed counsel; and 4)

8

Petitioner’s counsel in the trial court rendered ineffective

9

assistance by failing to communicate with Petitioner,

1) the trial court imposed an unauthorized

10

representing that Petitioner’s case was a loser, and failing to

11

object to or challenge the unauthorized sentence and to correct

12

an error of 1,144 days of time credit at sentencing.

13

(LD 11.)

In the second petition filed in the DCA, Petitioner argued

14

that his plea agreement had been breached because his sentence

15

was unconstitutional as it was based on findings made by a

16

preponderance of evidence by the sentencing court instead of

17

beyond a reasonable doubt by a jury pursuant to Apprendi v. New

18

Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296

19

(2004); United States v. Booker, 543 U.S. 220; Ring v. Arizona,

20

536 U.S. 584 (2002), and Cunningham v. California, 549 U.S. 270

21

(2007).

22

maliciously conspired with the prosecutor to coerce and pressure

23

Petitioner to enter a plea by fear.

24

(LD 13, 3-4.)

He alleged that his counsel had

It thus appears that, as Petitioner has admitted, rather

25

than simply add facts to the petition to perfect an earlier

26

claim, Petitioner in fact raised a new, constitutional claim in

27

the second petition.

28

respect to the claim of alleged ineffective assistance of trial

Further, he alleged different facts with

26

1

counsel, which changed the basis of the claim from omissions to

2

affirmative, malicious conduct.

3

does not appear to come within the exception, and it thus was a

4

successive petition.

5

in raising the new claim were not so recent as to justify the

6

delay in filing.

7

Accordingly, the second petition

Moreover, the cases relied on by Petitioner

However, regardless of whether or not the second petition

8

was successive and subject to denial, the delay in filing the

9

second petition was unreasonable and unjustified.

Because

10

Petitioner did not justify the delay during the period following

11

the DCA’s denial of his petition on December 4, 2008, until March

12

29, 2009, when he filed his second DCA petition, the interval is

13

not tolled.

14

In summary, the statute of limitations began running on

15

April 16, 2008, and was tolled until December 4, 2008.

16

hundred fourteen (114) days passed from December 5, 2008, through

17

March 28, 2009.

18

days of the limitations period remained.

19

from March 29, 2009, through September 30, 2009, when the

20

California Supreme Court denied the petition for writ of habeas

21

corpus.

22

The statutory period expired two hundred and fifty-one days later

23

on June 8, 2010.

24

July 26, 2010, the petition was time-barred.

25

One

At that point, two hundred and fifty-one (251)
The statute was tolled

The statute thus began to run again on October 1, 2009.

C.

As Petitioner did not file the petition until

Equitable Tolling

26

Petitioner argues that the running of the statute was

27

equitably tolled due to limited access to the law library based

28

on overcrowding, lock-downs, and conflicts with Petitioner’s work
27

1

and education programs.

2

alleges that as a high school drop-out, he was untrained in basic

3

education when he arrived at PVSP; he only recently passed the

4

state’s GED program.

5

law and also reduced his access to the law library because he

6

could not leave his work station during the times he could

7

otherwise utilize the library.

8

granted access to the law library during numerous lock-downs at

9

PVSP.

(Opp., doc. 13, 5.)

Petitioner also

This hindered his skills in learning the

(Doc. 26, 4:8-10.)

(Id. at 5:22-28.)

He was never

Petitioner declares that the law

10

librarian “failed to mention that at that very time he stated

11

Petitioner could access the law library, the facility was locked

12

down....”

13

(Id. at 4:26-28.)

Petitioner also states that the facts alleged by Respondent

14

and Respondent’s witnesses are outside the record on appeal and

15

constitute grounds to grant an evidentiary hearing, appoint

16

counsel, and permit investigation and refutation of the

17

librarian’s declaration.

18

(Id. at 5.)

The one-year limitation period of § 2244 is subject to

19

equitable tolling where the petitioner has been diligent, and

20

extraordinary circumstances, such as the egregious misconduct of

21

counsel, have prevented the petitioner from filing a timely

22

petition.

23

(2010).

24

circumstances were the cause of his untimeliness and that the

25

extraordinary circumstances made it impossible to file a petition

26

on time.

27

required for equitable tolling is reasonable diligence, not

28

“maximum feasible diligence.”

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.

The diligence

Holland v. Florida, 130 S.Ct. at
28

1
2

2565.
“[T]he threshold necessary to trigger equitable tolling

3

[under AEDPA] is very high, lest the exceptions swallow the

4

rule.”

5

Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)).

6

Spitsyn v. Moore, 345 F.3d 796, 799 (quoting Miranda v.

Petitioner bears the burden of alleging facts that would

7

give rise to tolling.

8

2002).

Smith v. Duncan, 297 F.3d 809 (9th Cir.

9

Here, Petitioner proceeded pro se.

10

status is not an extraordinary circumstance.

11

592 F.3d 1046, 1049.

12

ignorance of the law does not, in itself, warrant equitable

13

tolling.

14

2006).

15

Petitioner’s pro se
Chaffer v. Prosper,

A pro se petitioner's confusion or

Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.

Limited access to a law library and copy machine is a

16

routine restriction of prison life and thus is not an

17

extraordinary circumstance.

18

Petitioner’s allegations are general, and Petitioner has not

19

shown how any limitation of access to the law library actually

20

made it impossible for him to file a petition raising essentially

21

the same claims that he had raised before.

22

showing differs materially from one that establishes that lack of

23

access to specific materials precluded timely filing.

24

Petitioner’s filing numerous petitions in the state courts during

25

his incarceration is inconsistent with his allegations of

26

impossibility.

27
28

Ramirez v. Yates, 571 F.3d at 993.

Thus, Petitioner’s

Further,

Cf., Ramirez v. Yates, 571 F.3d at 998.

Accordingly, the Court concludes that Petitioner has not
shown that the statute should be equitably tolled.
29

1

IV.

2

Petitioner requests an evidentiary hearing to investigate

Petitioner’s Request for an Evidentiary Hearing

3

and refute the allegations of the law librarian concerning

4

equitable tolling.

5

In considering a request for an evidentiary hearing, the

6

Court must first determine whether a factual basis exists in the

7

record to support the petitioner’s claim.

8

F.3d 1075, 1078 (9th Cir. 1999).

9

with particularity facts, which if proven, would entitle him to

Baja v. Ducharme, 187

The petitioner should state

10

relief.

11

Baja v. Ducharme, 187 F.3d at 1079.

Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005);

12

As the foregoing analysis reflects, Petitioner did not

13

allege or document specific facts that, if proven, would entitle

14

him to relief on the basis of equitable tolling.

15

not demonstrated or suggested extraordinary circumstances beyond

16

his control.

17

by specific facts reflected in a declaration based on

18

institutional records.

19

Petitioner has

He alleged only generalities that are contradicted

Petitioner was granted leave to file a sur-reply, and the

20

parties were given an ample opportunity to develop the pertinent

21

facts.

22

specific facts pertained to events within his own knowledge, such

23

as his specific attempts to gain access to the law library and to

24

use other research sources, and the precise reasons why allegedly

25

limited access to research materials precluded timely filing.

26

Although Petitioner filed numerous petitions in the state courts

27

during the pertinent time and has had an opportunity to develop

28

the facts, he has not set forth specific facts that would

The matters as to which Petitioner should have submitted

30

1

equitably toll the statute.

2

Petitioner’s request for an evidentiary hearing.

Accordingly, the Court will deny

3

V.

4

Unless a circuit justice or judge issues a certificate of

Certificate of Appealability

5

appealability, an appeal may not be taken to the Court of Appeals

6

from the final order in a habeas proceeding in which the

7

detention complained of arises out of process issued by a state

8

court.

9

U.S. 322, 336 (2003).

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue

10

only if the applicant makes a substantial showing of the denial

11

of a constitutional right.

12

petitioner must show that reasonable jurists could debate whether

13

the petition should have been resolved in a different manner or

14

that the issues presented were adequate to deserve encouragement

15

to proceed further.

16

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

17

certificate should issue if the Petitioner shows that jurists of

18

reason would find it debatable whether the petition states a

19

valid claim of the denial of a constitutional right and that

20

jurists of reason would find it debatable whether the district

21

court was correct in any procedural ruling.

22

529 U.S. 473, 483-84 (2000).

23

§ 2253(c)(2).

Under this standard, a

Miller-El v. Cockrell, 537 U.S. at 336
A

Slack v. McDaniel,

In determining this issue, a court conducts an overview of

24

the claims in the habeas petition, generally assesses their

25

merits, and determines whether the resolution was debatable among

26

jurists of reason or wrong.

27

applicant to show more than an absence of frivolity or the

28

existence of mere good faith; however, it is not necessary for an

Id.

31

It is necessary for an

1

applicant to show that the appeal will succeed.

2

Cockrell, 537 U.S. at 338.

Miller-El v.

3

A district court must issue or deny a certificate of

4

appealability when it enters a final order adverse to the

5

applicant.

6

Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could

7

debate whether the petition should have been resolved in a

8

different manner.

9

of the denial of a constitutional right.

10
11

Petitioner has not made a substantial showing

Accordingly, the Court will decline to issue a certificate
of appealability.

12

VI.

13

In summary, Respondent has established that the petition was

14

Disposition

untimely and should be dismissed.

15

Accordingly, it is ORDERED that:

16

1)

Respondent’s motion to dismiss the petition is GRANTED;

2)

Petitioner’s motion for an evidentiary hearing

17

and

18
19

concerning the facts pertinent to equitable tolling is DENIED;

20

and

21

3)

The petition is DISMISSED as untimely filed; and

22

4)

The Clerk shall ENTER judgment for Respondent; and

23

5)

The Court DECLINES to issue a certificate of

24

appealability.

25

IT IS SO ORDERED.

26

Dated:
ie14hj

September 6, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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