Espericueta v. Lackner

Filing 18


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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

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