Espericueta v. Lackner

Filing 18

ORDER GRANTING 14 MOTION TO DISMISS THE PETITION; DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY FILED 1 ; DIRECTING THE ENTRY OF JUDGMENT FOR RESPONDENT AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY signed by Magistrate Judge Sheila K. Oberto on 11/4/2014. CASE CLOSED. (Lundstrom, T)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10
11 HOMER ESPERICUETA,

Case No. 1:14-cv-00342-SKO-HC

12

ORDER GRANTING RESPONDENT’S MOTION
TO DISMISS THE PETITION (DOC. 14)

13

Petitioner,
v.

14
15 HEIDI LACKNER, Warden,
16
17
18

ORDER DISMISSING THE PETITION FOR
WRIT OF HABEAS CORPUS AS UNTIMELY
FILED (DOC. 1), DIRECTING THE ENTRY
OF JUDGMENT FOR RESPONDENT,
AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY

Respondent.
Petitioner is a state prisoner proceeding with counsel with a

19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
20 Pursuant to 28 U.S.C. 636(c)(1), the parties have consented to the
21 jurisdiction of the United States Magistrate Judge to conduct all
22 further proceedings in the case, including the entry of final
23 judgment, by manifesting their consent in writings signed by the
24 parties or their representatives and filed by Petitioner on March
25 11, 2014, and on behalf of Respondent on May 14, 2014.

Pending

26 before the Court is Respondent’s motion to dismiss the petition,
27 which was filed on June 20, 2014.

Petitioner filed opposition on

28 July 10, 2014, and Respondent filed a reply on July 17, 2014.
1

1

I.

Proceeding by a Motion to Dismiss

2

Respondent has filed a motion to dismiss the petition on the

3 ground that Petitioner filed his petition outside of the one-year
1
4 limitation period provided for by 28 U.S.C. § 2244(d)(1).

Rule 4 of the Rules Governing Section 2254 Cases in the United

5

6 States District Courts (Habeas Rules) allows a district court to
7 dismiss a petition if it “plainly appears from the face of the
8 petition and any exhibits annexed to it that the petitioner is not
9 entitled to relief in the district court....”
The Ninth Circuit has allowed respondents to file motions to

10

11 dismiss pursuant to Rule 4 instead of answers if the motion to
12 dismiss attacks the pleadings by claiming that the petitioner has
13 failed to exhaust state remedies or has violated the state’s
14 procedural rules.

See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420

15 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss a
16 petition for failure to exhaust state remedies); White v. Lewis, 874
17 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to review a motion to
18 dismiss for state procedural default); Hillery v. Pulley, 533
19 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same).

Thus, a

20 respondent may file a motion to dismiss after the Court orders the
21 respondent to respond, and the Court should use Rule 4 standards to
22 review a motion to dismiss filed before a formal answer.

See,

23 Hillery, 533 F. Supp. at 1194 & n.12.
Respondent’s motion to dismiss addresses the untimeliness of

24

25 the petition pursuant to 28 U.S.C. § 2244(d)(1).

The material facts

26 pertinent to the motion are found in copies of the official records
27
1

Because it is concluded that the petition was untimely filed, only the

28 untimeliness of the petition has been considered, and Respondent’s additional
grounds have not been addressed.

2

1 of state judicial proceedings, records which have been provided by
2 the parties and which present no factual dispute.

Because

3 Respondent has not filed a formal answer, and because Respondent's
4 motion to dismiss is similar in procedural standing to a motion to
5 dismiss for failure to exhaust state remedies or for state
6 procedural default, the Court will review Respondent’s motion to
7 dismiss pursuant to its authority under Rule 4.
8

II.

Background

9

Petitioner does not dispute the accuracy of the Respondent’s

10 summary of the pertinent events set forth in the motion to dismiss
11 and demonstrated by the state court record.

Accordingly, that

12 summary is reproduced here with minor modifications.
Petitioner was convicted in the Kern County Superior Court

13

14 (KCSC) of possession of a controlled substance in violation of Cal.
15 Health & Saf. Code § 11377(a), and multiple sentencing allegations
16 were found true.

Petitioner was sentenced on October 23, 1997, to

17 an indeterminate state prison term of twenty-five years to life.
2
18 (LD 1.)

The judgment was affirmed on direct appeal by the Court of

19

20 Appeal of the State of California, Fifth Appellate District (CCA) on
21 January 19, 1999 (LD 2); the California Supreme Court (CSC) denied
22 review on April 14, 1999 (LD 3-4).
Petitioner filed five state post-conviction collateral

23

24 challenges to the judgment, all petitions for writs of habeas
25 corpus, with the exception of the fifth action, which was a petition
26 for review:
27
28

2

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

3

1

First Petition

2

November 3, 1999: Petition constructively filed in the KCSC (LD

3
3 5);

4

December 7, 1999: Petition denied (LD 6);

5

Second Petition

6

April 9, 2000: Petition constructively filed in the CCA (LD 7);4

7

April 27, 2000: Petition denied (LD 8);

8

Third Petition

9

May 16, 2013: Petition filed in the KCSC (LD 9);

10
3

Dates of filing are
Habeas
11 provides that a paper calculateda pursuant to the “mailbox rule.” in the Rule 3(d)
filed by
prisoner is timely if deposited
internal mailing
day for filing. The
12 institution’s the inmate to usesystem on or before the last system designed for
rule requires
the custodial institution’s
legal mail; timely filing may be shown by a declaration in compliance with 28

13 U.S.C. § 1746 or by a notarized statement setting forth the date of deposit and
verifying prepayment of first-class postage. Id. Habeas Rule 3(d) reflects the
14 “mailbox rule,” initially developed in case law, pursuant to which a prisoner's
pro se habeas petition is "deemed filed when he hands it over to prison
Houston v. Lack, 487 U.S. 266,
276 (1988); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001). The mailbox
rule applies to federal and state petitions. 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)). The
mailbox rule, liberally applied, in effect assumes that absent evidence to the
contrary, a legal document is filed on the date it was delivered to prison
authorities, and a petition was delivered on the day it was signed. Houston v.
Lack, 487 U.S. at 275-76; Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir.
2010); Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010); Lewis v.
Mitchell, 173 F.Supp.2d 1057, 1058 n.1 (C.D.Cal. 2001). The date a 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). However, if there is a long delay between
the alleged mailing and receipt by a court, a district court may attribute the
discrepancy to various causes, including the court, the postal service, the prison
authorities, or the prisoner himself. See, Koch v. Ricketts, 68 F.3d 1191, 1193
n.3 (9th Cir. 1995) (concerning analogous Fed. R. App. P. 4(c)).
Here, although the petition was signed earlier, Petitioner submitted the
petition with a signed letter dated November 3, 1999.

15 authorities for mailing to the relevant court.”
16
17
18
19
20
21
22
23
24
25
26
27
28

4

While this state petition was pending, Petitioner filed in this Court on April
12, 2000, a prior federal habeas action, Espericueta v. Lockyer, 1:00-cv-5577 SMS,
which was dismissed without prejudice for Petitioner’s failure to name a proper
respondent and to exhaust state court remedies. (LD 15.) The pendency of a
petition in a federal court does not toll the running of the statute under 28
U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 172 (2001).

4

1

August 2, 2013: Petition denied (LD 10);

2

Fourth Petition

3

October 22, 2013: Petition filed in the CCA (LD 11);

4

November 1, 2013: Petition denied (LD 12);

5

Fifth Petition

6

November 19, 2013: Petition (for review of the denial of the

7 fourth state habeas corpus petition) received in the CSC (LD 13);
8 and
9

December 2, 2013: Petition rejected as untimely where no

10 application for relief from default was submitted (LD 14).
11

Petitioner filed the federal habeas petition in the instant

12 proceeding on March 7, 2014.

(Doc. 1.)

13

III.

Timeliness of the Petition

14

Because the petition was filed after April 24, 1996, the

15 effective date of the Antiterrorism and Effective Death Penalty Act
16 of 1996 (AEDPA), the AEDPA applies to the petition.

Lindh v.

17 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,
18 1499 (9th Cir. 1997).
19

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

20 petitioner must file a petition for writ of habeas corpus.
21 U.S.C. § 2244(d)(1).
22
23
24
25
26
27
28

28

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 –
(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;
(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
5

the applicant was prevented from filing by such State
action;

1
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
6
7

(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through the
exercise of due diligence.

8
(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.

9
10
11

12 28 U.S.C. § 2244(d).
13
14

A.

Commencement and Running of the Limitations Period

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

15 imposed on the petitioner.
16 (2007).

Burton v. Stewart, 549 U.S. 147, 156-57

The last sentence was imposed on Petitioner on October 23,

17 1997.
18

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

19 conclusion of direct review or the expiration of the time for
20 seeking such review in the highest court from which review could be
21 sought.

Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001).

22 The statute commences to run pursuant to § 2244(d)(1)(A) upon either
23 1) the conclusion of all direct criminal appeals in the state court
24 system, followed by either the completion of certiorari proceedings
25 before the United States Supreme Court, or 2) if certiorari was not
26 sought, by the conclusion of all direct criminal appeals in the
27 state court system followed by the expiration of the time permitted
28 for filing a petition for writ of certiorari.
6

Wixom, 264 F.3d at

1 897 (quoting Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998),
2 cert. denied, 525 U.S. 1187 (1999)).
3

Here, neither party has indicated that Petitioner sought

4 certiorari from the United States Supreme Court.

Petitioner’s

5 direct criminal appeals in the state court system concluded when his
6 petition for review was denied by the CSC on April 14, 1999.
7 time permitted for seeking certiorari was ninety days.

The

Supreme

8 Court Rule 13; Porter v. Ollison, 620 F.3d 952, 958-59 (9th Cir.
9 2010); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).
10

The Court will apply Fed. R. Civ. P. 6(a) in calculating the

11 pertinent time periods.

See, Waldrip v. Hall, 548 F.3d 729, 735 n.2

12 (9th Cir. 2008), cert. denied, 130 S.Ct. 2415 (2010).

Applying Fed.

13 R. Civ. P. 6(a)(1)(A), the day of the triggering event is excluded
14 from the calculation.

Thus, the ninety-day period commenced on

15 April 15, 1999, the day following the CSC’s denial of review.
16 Further applying Rule 6(a)(1)(A), which requires counting every day,
17 the ninetieth day was July 13, 1999.

Thus, the judgment became

18 final within the meaning of § 2244(d)(1)(A) on July 13, 1999.
19

Therefore, the limitation period began to run on the following

20 day, July 14, 1999, and, absent any tolling, concluded one year
21 later on July 13, 2000.
22
23

B.

Statutory Tolling

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

24 a properly filed application for State post-conviction or other
25 collateral review with respect to the pertinent judgment or claim is
26 pending shall not be counted toward” the one-year limitation period.
27 28 U.S.C. § 2244(d)(2).
28
7

1

An application for collateral review is “pending” in state

2 court “as long as the ordinary state collateral review process is
3 “in continuance”- i.e., “‘until the completion of’ that process.”
4 Carey v. Saffold, 536 U.S. 214, 219-20 (2002).

In California, this

5 generally means that the statute of limitations is tolled from the
6 time the first state habeas petition is filed until the California
7 Supreme Court rejects the petitioner’s final collateral challenge,
8 as long as the petitioner did not “unreasonably delay” in seeking
9 review.

Id. at 221-23; accord, Nino v. Galaza, 183 F.3d 1003, 1006

10 (9th Cir. 1999).

Thus, absent unreasonable delay, the statute is

11 tolled during the gaps between denial of a petition and the filing
12 of the next petition in a higher state court because the collateral
13 review process is deemed “pending” within the meaning of §
14 2244)(d)(2).

However, the statute of limitations is not tolled from

15 the time a final decision is issued on direct state appeal and the
16 time the first state collateral challenge is filed because there is
17 no case “pending” during that interval.

Nino v. Galaza, 183 F.3d at

18 1006; see, Lawrence v. Florida, 549 U.S. 327, 330-33 (2007) (time
19 period after a state court’s denial of state post-conviction relief
20 and while a petition for certiorari is pending in the United States
21 Supreme Court is not tolled because no application for state post22 conviction or other state collateral review is pending).
23

Here, the limitation period commenced on July 14, 1999.

The

24 filing of the first state petition in the KCSC on November 3, 1999,
25 tolled the statute for thirty-five days until the petition was
26 denied on December 7, 1999.
27

Respondent contends that Petitioner is not entitled to

28 statutory “gap” tolling between the KCSC’s denial of December 7,
8

1 1999, and the filing of the second state petition in the CCA on
2 April 9, 2000, because the delay of 123 days was unreasonable.
3

Absent a clear direction or explanation from the California

4 Supreme Court about the meaning of the term “reasonable time” in
5 a specific factual context, or a clear indication that a filing
6 was timely or untimely, a federal court hearing a subsequent
7 federal habeas petition must examine all relevant circumstances
8 concerning the delay in each case and determine independently
9 whether the California courts would have considered any delay
10 reasonable so as to render the state collateral review petition
11 “pending” within the meaning of § 2244(d)(2).
12 546 U.S. 189, 197-98 (2006).

Evans v. Chavis,

A delay of six months has been found

13 to be unreasonable because it is longer than the relatively short
14 periods of thirty (30) or sixty (60) days provided by most states
15 for filing appeals.
16

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

The thirty-day to sixty-day period is applied as a benchmark

17 for California's “reasonable time” requirement, to be exceeded in
18 appropriate circumstances.

Stewart v. Cate, 734 F.3d 995, 1001 (9th

19 Cir. 2013) (citing Velasquez v. Kirkland, 639 F.3d 964, 968 (9th
20 Cir. 2011)).

Various periods of delay have been found to be

21 unreasonable, including intervals of 81 and 92 days between the
22 disposition of a writ at one level and the filing of the next writ
23 at a higher level, Velasquez v. Kirkland, 639 F.3d 964, 968 (9th
24 Cir. 2011), cert. den., 132 S.Ct. 554 (2011); unexplained,
25 unjustified periods of 97 and 71 days, Culver v. Director of
26 Corrections, 450 F.Supp.2d 1135, 1140 (C.D.Cal. 2006); 100 days
27 between the denial of a petition by the California Court of Appeal
28 and the filing of a petition in the California Supreme Court, which
9

1 was held to be unreasonable because there was no showing of good
2 cause for the delay where the two petitions involved the same
3 claims, evidence, and research, and the petitioner had at least
4 thirty days to file the petition despite being under prisoner
5 emergency status and being unable to research his petition, Stewart
6 v. Cate, 734 F.3d at 1002-03; unjustified delays of 115 and 101 days
7 between denial of one petition and the filing of a subsequent
8 petition, Chaffer v. Prosper, 592 F.3d. 1046, 1048 (9th Cir. 2010);
9 and 146 days between the filing of two trial court petitions, Banjo
10 v. Ayers, 614 F.3d 964, 968-69 (9th Cir. 2010), cert. den., 131
11 S.Ct. 3023 (2011).
12

Here, the CCA summarily denied the petition and did not

13 expressly determine that the petition was timely or untimely.

This

14 Court thus proceeds to examine all relevant circumstances concerning
15 the delay and to determine independently whether the California
16 courts would have considered any delay reasonable.
17

The delay of 123 days was a substantial delay that would be

18 unreasonable if unsupported by a showing of good cause.
19
20
21
22
23
24
25
26
27
28

With

respect to justification for the delay, to benefit from
statutory tolling, a petitioner must adequately justify a
substantial delay.

28 U.S.C. § 2244(d)(2); Evans v. Chavis, 546

U.S. at 192-93; Waldrip v. Hall, 548 F.3d at 734.
In In re Reno, 55 Cal.4th 428, 460-61 (2012), the California
Supreme Court summarized the applicable California law as
follows:
Our rules establish a three-level analysis for
assessing whether claims in a petition for a writ of
habeas corpus have been timely filed. First, a claim
must be presented without substantial delay. Second, if
10

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

a petitioner raises a claim after a substantial delay,
we will nevertheless consider it on its merits if the
petitioner can demonstrate good cause for the delay.
Third, we will consider the merits of a claim presented
after a substantial delay without good cause if it
falls under one of four narrow exceptions: “(i) that
error of constitutional magnitude led to a trial that
was so fundamentally unfair that absent the error no
reasonable judge or jury would have convicted the
petitioner; (ii) that the petitioner is actually
innocent of the crime or crimes of which he or she was
convicted; (iii) that the death penalty was imposed by
a sentencing authority that had such a grossly
misleading profile of the petitioner before it that,
absent the trial error or omission, no reasonable judge
or jury would have imposed a sentence of death; or (iv)
that the petitioner was convicted or sentenced under an
invalid statute.” (In re Robbins, supra, 18 Cal.4th at
pp. 780–781, 77 Cal.Rptr.2d 153, 959 P.2d 311.) The
petitioner bears the burden to plead and then prove all
of the relevant allegations. (Ibid.)
The United States Supreme Court recently, and
accurately, described the law applicable to habeas
corpus petitions in California: “While most States set
determinate time limits for collateral relief
applications, in California, neither statute nor rule
of court does so. Instead, California courts ‘appl[y] a
general “reasonableness” standard’ to judge whether a
habeas petition is timely filed. Carey v. Saffold, 536
U.S. 214, 222 [122 S.Ct. 2134, 153 L.Ed.2d 260] (2002).
The basic instruction provided by the California
Supreme Court is simply that ‘a [habeas] petition
should be filed as promptly as the circumstances
allow....’” (Walker v. Martin, supra, 562 U.S. at p.
––––, 131 S.Ct. at p. 1125.) “A prisoner must seek
habeas relief without ‘substantial delay,’ [citations],
as ‘measured from the time the petitioner or counsel
knew, or reasonably should have known, of the
information offered in support of the claim and the
legal basis for the claim,’ [citation].” (Ibid.; see
also In re Robbins, supra, 18 Cal.4th at p. 780, 77
Cal.Rptr.2d 153, 959 P.2d 311 [“Substantial delay is
measured from the time the petitioner or his or her
counsel knew, or reasonably should have known, of the
information offered in support of the claim and the
legal basis for the claim.”].)
11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

In re Reno, 55 Cal.4th at 460-61.

A petitioner must show

particular circumstances, based on allegations of specific facts,
sufficient to justify the delay; allegations made in general
terms are insufficient.

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

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

There are no

California standards for determining what period of time or factors
constitute “substantial delay” in noncapital cases or for
determining what factors justify any particular length of delay.
King v. LaMarque, 464 F.3d 963, 966 (9th Cir. 2006).

California’s

time limit for filing a habeas petition in a noncapital case is more
“forgiving and flexible than that employed by most states.” Chavis,
546 U.S. at 202 (Stevens, J., concurring).
Petitioner does not set forth any explanation or justification
for the delay.

The later petition contained new grounds, but it was

not lengthy or complex, and it also incorporated essentially the
same grounds as the earlier petition
Petitioner argues that the equitable doctrine of laches does
not bar the petition.

However, the petition is governed by the

AEDPA, which provides for statutory standards.

To the extent

Petitioner addresses doctrines of equity, Petitioner does not
suggest or show how equitable tolling could protect him from the
running of the statute.
In summary, Petitioner has not made a specific showing that is
legally sufficient to justify his delay in filing the second state
petition.

Respondent correctly contends that because of

unreasonable delay, Petitioner is not entitled to statutory tolling
for the period of time between the denial of the first state court
12

1 petition and the filing of the second state petition.

Thus, the

2 statute ran for 123 days after the first state habeas petition was
3 denied by the KCSC on December 7, 1999, and the second was filed in
4 the CCA on April 9, 2000.

Petitioner is entitled to a more limited

5 period of nineteen days of tolling during the literal pendency of
6 the second petition from its filing in the CCA on April 9, 2000, and
7 its denial on April 27, 2000.
8

In summary, the running of the one-year limitations period was

9 tolled for fifty-four days after it commenced on July 14, 1999,
10 which resulted in the expiration of the limitations period in early
11 September 2000.

Petitioner did not file his next (third) state

12 petition until May 2013 -- over a dozen years later.

Thus, the

13 limitations period had run before Petitioner’s third state petition
14 was filed.

A state petition filed after the expiration of the

15 AEDPA’s one-year limitation period does not re-initiate or toll the
16 running of the limitations period under 28 U.S.C. § 2244(d)(2).
17 Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
18

In conclusion, although Petitioner has shown he is entitled to

19 a limited period of statutory tolling, he has not shown tolling for
20 a period sufficient to prevent the running of the limitations period
21 before the petition in this action was filed on March 7, 2014.
22 Because the limitations period expired before Petitioner filed his
23 petition here, his petition must be dismissed with prejudice as
24 untimely.
25

IV.

Certificate of Appealability

26

Unless a circuit justice or judge issues a certificate of

27 appealability, an appeal may not be taken to the Court of Appeals
28 from the final order in a habeas proceeding in which the detention
13

1 complained of arises out of process issued by a state court.

28

2 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
3 (2003).

A district court must issue or deny a certificate of

4 appealability when it enters a final order adverse to the applicant.
5 Rule 11(a) of the Rules Governing Section 2254 Cases.
6

A certificate of appealability may issue only if the applicant

7 makes a substantial showing of the denial of a constitutional right.
8 ' 2253(c)(2).

A petitioner must show that reasonable jurists could

9 debate whether the petition should have been resolved in a different
10 manner or that the issues presented were adequate to deserve
11 encouragement to proceed further.

Miller-El v. Cockrell, 537 U.S.

12 at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

A

13 certificate should issue if the Petitioner shows that jurists of
14 reason would find it debatable whether: (1) the petition states a
15 valid claim of the denial of a constitutional right, and (2) the
16 district court was correct in any procedural ruling.

Slack v.

17 McDaniel, 529 U.S. 473, 483-84 (2000).
18

In determining this issue, a court conducts an overview of the

19 claims in the habeas petition, generally assesses their merits, and
20 determines whether the resolution was debatable among jurists of
21 reason or wrong.

Id.

An applicant must show more than an absence

22 of frivolity or the existence of mere good faith; however, the
23 applicant need not show that the appeal will succeed.

Miller-El v.

24 Cockrell, 537 U.S. at 338.
25

Here, it does not appear that reasonable jurists could debate

26 whether the petition should have been resolved in a different
27 manner.

Petitioner has not made a substantial showing of the denial

28 of a constitutional right.

Accordingly, the Court will decline to
14

1 issue a certificate of appealability.
2

V.

Disposition

3

In accordance with the foregoing analysis, it is ORDERED that:

4

1) Respondent’s motion to dismiss the petition is GRANTED;

5

2) The petition is DISMISSED with prejudice as untimely filed;

6

3) The Clerk is DIRECTED to enter judgment for Respondent; and

7

4) The Court DECLINES to issue a certificate of appealability.

8
9
10 IT IS SO ORDERED.
11
12

Dated:

November 4, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15