Ewing v. Lizarraga

Filing 18

ORDER GRANTING MOTION TO DISMISS, AND DENYING CERTIFICATE OF APPEALABILITY (ECF NOS. 8, 16 &17) by Judge Charles R. Breyer: Granting 8 Motion to Dismiss; 16 Motion for Hearing; 17 Motion to Appoint Counsel. (Attachments: # 1 Certificate/Proof of Service)(lsS, COURT STAFF) (Filed on 6/20/2017)

1
2
3
4
5
6
7
8
9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11
12

DeWAYNE L. EWING, AI4771,
Petitioner,

13
14
15

vs.
J. A. LIZARRAGA, Warden,

16

Respondent.

)
)
)
)
)
)
)
)
)
)

No. C 16-5875 CRB (PR)
ORDER GRANTING
MOTION TO DISMISS, AND
DENYING CERTIFICATE OF
APPEALABILITY
(ECF Nos. 8, 16 & 17)

17
I.

18
19

Petitioner, a California state prisoner incarcerated at Mule Creek State

20

Prison, seeks a writ of habeas corpus under 28 U.S.C. § 2254 invalidating a

21

September 12, 2011 conviction and sentence from Alameda County Superior

22

Court. Per order filed on October 18, 2016, the court found that, liberally

23

construed, petitioner’s claim that counsel’s advice to plead no contest amounted

24

to ineffective assistance of counsel appeared cognizable under § 2254 and

25

ordered respondent to show cause why a writ of habeas corpus should not be

26

granted. Respondent instead filed a motion to dismiss the petition as untimely

27

and procedurally defaulted. Petitioner has filed an opposition and respondent has

28

filed a reply.

1

II.

2

On January 29, 1994, two men kidnapped and robbed a husband and wife,

3

beat up the husband, and raped the wife. Following a cold hit on DNA evidence

4

many years later, petitioner was indicted by a grand jury on two counts of

5

kidnapping during the commission of a carjacking, Cal. Penal Code § 209.5(a),

6

and two counts of kidnapping to commit rape, id. § 209(b)(1), with enhancements

7

for use of a firearm, great bodily injury and being armed with a firearm.

8
9

On July 19, 2011, pursuant to a negotiated plea agreement, petitioner
pleaded no contest to three lesser-included offenses – two counts of simple

10

kidnapping, id. § 207(a), and one count of carjacking, id. § 215 – for a

11

determinate sentence of 25 years in state prison.1 Petitioner expressly waived any

12

objection to the facts that the lesser-included offenses were otherwise barred by

13

the statute of limitation and that he ordinarily could receive only one-third of the

14

midterm on the second and third counts, as well as his right to appeal, in order to

15

avoid possible consecutive life sentences and receive the agreed-upon 25-year

16

term. The prosecutor dismissed the original charges and all enhancements.

17
18
19

On September 12, 2011, petitioner was sentenced to 25 years in state
prison. He did not appeal.
On September 17, 2012, petitioner filed a petition for a writ of habeas

20

corpus in Alameda County Superior Court raising a claim of improper denial of

21

pre-sentence credits and four claims of ineffective assistance of counsel. On

22

November 15, 2012, the court denied the pre-sentence credits claim on the merits

23

and the ineffective assistance of counsel claims as untimely, citing People v.

24

Kim, 45 Cal. 4th 1078, 1097 (2009); In re Sanders, 21 Cal. 4th 697, 703 (1999);

25
1

26
27
28

Petitioner’s cousin, Kevin Barnes, was charged as the second man involved in
the crimes, and also pleaded no contest to lesser-included offenses pursuant to the
negotiated plea agreement.

2

1

In re Robbins, 18 Cal. 4th 770, 780 (1998); and In re Clark, 5 Cal. 4th 750, 768,

2

775, 797 (1993). ECF No. 1 (Pet.) at 31-33. The court added that the ineffective

3

assistance of counsel claims lacked merit, even if they had been timely raised. Id.

4

at 33-35.

5

On April 2, 2013, petitioner filed a petition for a writ of habeas corpus in

6

the California Court of Appeal. It was summarily denied on April 11, 2013.

7

ECF No. 8 (Mot. to Dismiss) at 43 (Ex. 2).

8
9

On April 1, 2015, petitioner filed another petition for a writ of habeas
corpus in Alameda County Superior Court raising additional claims of ineffective

10

assistance of counsel. On May 28, 2015, the court denied the petition as

11

procedurally barred by the rule against successive petitions and abuse of the writ,

12

citing In re Clark, 5 Cal. 4th 750, 768, 797 (1993); and In re Miller, 17 Cal. 2d

13

734, 735 (1941). ECF No. 1 at 29-30.

14

On August 24, 2015, petitioner filed a petition for a writ of habeas corpus

15

in the California Court of Appeal. It was summarily denied on September 3,

16

2015. ECF No. 8 at 45 (Ex. 3).

17

On February 2, 2016, petitioner filed a petition for a writ of habeas corpus

18

in the California Supreme Court. On April 20, 2016, the state high court denied

19

the petition as untimely, citing In re Robbins, 18 Cal. 4th 770, 780 (1998). ECF

20

No. 8 at 79 (Ex. 5).

21

On October 11, 2016, petitioner filed the instant federal petition for a writ

22

of habeas corpus under § 2254 claiming that counsel’s advice to plead no contest

23

to three lesser-included offenses amounted to ineffective assistance of counsel

24

because: (1) the charges to which petitioner pleaded no contest were barred by

25

the statute of limitation; (2) counsel incorrectly informed petitioner that he faced

26

life in prison if he went to trial; (3) counsel failed to investigate the evidence,

27
28

3

1

including DNA evidence; and (4) counsel failed to raise a doubt about

2

petitioner’s competence.

3
4

III.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

5

became law on April 24, 1996 and imposed for the first time a statute of

6

limitation on petitions for a writ of habeas corpus filed by state prisoners.

7

Petitions filed by prisoners challenging non-capital state convictions or sentences

8

must be filed within one year of the latest of the date on which: (1) the judgment

9

became final after the conclusion of direct review or the time passed for seeking

10

direct review; (2) an impediment to filing an application created by

11

unconstitutional state action was removed, if such action prevented petitioner

12

from filing; (3) the constitutional right asserted was recognized by the Supreme

13

Court, if the right was newly recognized by the Supreme Court and made

14

retroactive to cases on collateral review; or (4) the factual predicate of the claim

15

could have been discovered through the exercise of due diligence. 28 U.S.C.

16

§ 2244(d)(1). Time during which a properly filed application for state post-

17

conviction or other collateral review is pending is excluded from the one-year

18

time limit. Id. § 2244(d)(2).

19

A state prisoner with a conviction finalized after April 24, 1996, ordinarily

20

must file his federal habeas petition within one year of the date his process of

21

direct review came to an end. See Calderon v. United States Dist. Court (Beeler),

22

128 F.3d 1283, 1286 (9th Cir. 1997), overruled in part on other grounds by

23

Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en

24

banc). Here, because petitioner did not appeal his September 12, 2011

25

conviction, his process of direct review came to an end on November 11, 2011,

26

when the time for filing an appeal expired. See Cal. Rule of Court 8.308(a)

27
28

4

1

(notice of appeal must be filed within 60 days of criminal judgment); see also

2

Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006) (California conviction

3

becomes final 60 days after judgment if not appealed). Petitioner therefore had

4

until November 11, 2012 to file a federal habeas petition within the one-year

5

limitation period. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001)

6

(calculating AEDPA’s one-year limitation period according to Federal Rule of

7

Civil Procedure 6(a)). But the instant petition was not filed until October 11,

8

2016. It is untimely unless the limitation period was tolled for a substantial

9

period of time.
A.

10
11

AEDPA’s one-year limitation period is tolled under § 2244(d)(2) for the

12

“time during which a properly filed application for State post-conviction or other

13

collateral review with respect to the pertinent judgment or claim is pending.” 28

14

U.S.C. § 2244(d)(2)). This includes the time between lower court’s decision and

15

the filing of a notice of appeal to a higher state court. Carey v. Saffold, 536 U.S.

16

214, 219-221 (2002). In California, where prisoners generally use the state’s

17

“original writ system,” this means that the limitation period remains tolled during

18

the intervals between a state court’s disposition of an original state habeas

19

petition and the filing of a further original state habeas petition in a higher state

20

court (gap-tolling), provided the prisoner did not delay unreasonably in seeking

21

review in the higher state court. See id. at 220-23; see also Nino v. Galaza, 183

22

F.3d 1003, 1005 (9th Cir. 1999).

23

Here, petitioner filed his first state habeas petition in Alameda County

24

Superior Court on September 17, 2012, 55 days before the one-year limitation

25

period expired on November 11, 2012. But respondent claims that the petition

26

did not toll the one-year limitation period because it was denied as untimely, and

27
28

5

1

therefore was not “properly filed” under § 2244(d)(2). Not so. Although it is

2

well established that if a state court “reject[s] a petitioner’s [post-conviction]

3

petition as untimely, it was not ‘properly filed,’ and he is not entitled to statutory

4

tolling under § 2244(d)(2),” Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005)

5

(emphasis added), that is not what happened here. On November 15, 2012, the

6

state superior court denied petitioner’s pre-sentence credits claim on the merits

7

and his ineffective assistance of counsel claims as untimely. The court did not

8

reject petitioner’s first state habeas petition as untimely, and hence as not

9

properly filed, because at least one of the claims before it was accepted as timely

10

and properly filed. Under the circumstances, petitioner’s first state habeas

11

petition tolled the limitation period under § 2244(d)(2). Cf. Campbell v. Henry,

12

614 F.3d 1056, 1062 (9th Cir. 2010) (finding one timely claim in prisoner’s state

13

habeas petition sufficient to toll limitation period under § 2244(d)(2) with regard

14

to any and all claims in federal petition). That the petition contained procedurally

15

barred claims of ineffective assistance of counsel did not in of itself render it

16

improperly filed for purposes of tolling the limitation period under § 2244(d)(2).

17

See Artuz v. Bennett, 531 U.S. 4, 8-10 (2000) (noting that question whether an

18

application was properly filed is quite separate from question whether claims in

19

application are procedurally barred).

20

But even if petitioner’s first state habeas petition tolled the limitation

21

period under § 2244(d)(2) until it was summarily denied by the California Court

22

of Appeal on April 11, 2013, his federal habeas petition is still untimely. After

23

the California Court of Appeal summarily denied petitioner’s first state habeas

24

petition on April 11, 2013, petitioner did not seek further review from the

25

California Supreme Court. He instead waited nearly two years until, on April 1,

26

2015, he filed a new state habeas petition in Alameda County Superior Court

27
28

6

1

raising additional claims of ineffective assistance of counsel. But unlike with his

2

first state habeas petition, the superior court this time rejected the entire petition

3

on May 28, 2015 as procedurally barred by the rule against successive petitions

4

and abuse of the writ. Under the law of the circuit, the petition was not properly

5

filed and did not toll the limitation period under § 2244(d)(2). See Porter v.

6

Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (for § 2244(d)(2) tolling to apply, state

7

“petition cannot be untimely or an improper successive petition”). Nor did his

8

subsequent petitions to the California Court of Appeal and California Supreme

9

Court toll the limitation period under § 2244(d)(2) – the California Court of

10

Appeal’s September 3, 2015 summary denial must be considered successive and

11

abusive, and the petition therefore not properly filed, see Ylst v. Nunnemaker,

12

501 U.S. 797, 801-06 (1991) (where last reasoned opinion expressly imposed

13

procedural bar, it should be presumed that later summary denial imposed bar as

14

well), and the California Supreme Court’s April 20, 2016 express denial of the

15

petition as untimely is “‘the end of the matter’ for the purposes of § 2244(d)(2),”

16

Pace, 544 U.S. at 414 (citing Carey, 536 U.S. at 226).2

17

Because petitioner is not entitled to tolling under § 2244(d)(2) beyond

18

April 11, 2013, when the California Court of Appeal summarily denied his first

19

state habeas petition, the limitation period expired against him no later than 55

20

days after April 11, 2013, or June 5, 2013. Petitioner filed his federal petition on

21

October 11, 2016. It is untimely.3

22
23

2

A federal habeas court cannot revisit whether a state court properly imposed a
state law untimeliness bar. See Rudin v. Myles, 781 F.3d 1043, 1054 (9th Cir. 2015).

24
3

25
26
27
28

Even if petitioner was entitled to tolling under § 2244(d)(2) for the entire time
he was seeking state habeas relief (i.e., from the date he filed his first state habeas
petition in Alameda County Superior Court, September 17, 2012, until the date on
which the California Supreme Court denied his final state habeas petition, April 20,
2016), his federal petition is untimely. Petitioner would have had 55 days after April

7

1

B.

2
3

Petitioner claims that he is entitled to equitable tolling because he was
misled by the trial court and by trial counsel, and not given his legal files.

4

In order to receive equitable tolling of AEDPA’s one-year limitation

5

period, petitioner must show (1) that some “extraordinary circumstance” stood in

6

his way and prevented him from filing on time, and (2) that he has been pursuing

7

his rights diligently. Holland v. Florida, 560 U.S. 631, 649 (2010). He also

8

must show that the extraordinary circumstance “proximately caused” his late

9

filing. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). This is a “very high

10

bar” reserved for “rare cases.” Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir.

11

2014).

12

Petitioner contends that he was misled by the trial court at the change of

13

plea hearing. He specifically points to the portion of the hearing transcript where

14

the trial court advised him that “this disposition ends the case” and “[t]here is

15

nothing left to litigate or appeal,” ECF No. 8 at 25 (Ex. 1), and suggests that this

16

shows some sort of “subterfuge” by the court, ECF No. 13 (Opp’n) at 6. But the

17

hearing transcript makes clear that, contrary to petitioner’s contention, the trial

18

court in no way “affirmatively misled” him. Id. (citing Pliler v. Ford, 542 U.S.

19

225, 234 (2004)). “In order to show that he was affirmatively misled, [petitioner

20

must] point to some inaccuracy in the [trial] court’s instructions.” Ford v. Pliler,

21

590 F.3d 782, 788 (9th Cir. 2009). He must identify an “affirmative

22

misstatement.” Id. But he cannot because the trial court’s explanation of the

23

effect of the plea and waiver was correct. In order to avoid possible consecutive

24
25
26

20, 2016, or until June 14, 2016, to file a timely federal petition. But he did not file his
federal petition until October 11, 2016.

27
28

8

1

life sentences and receive a 25-year term, petitioner had to waive several rights,

2

including his “right to appeal any and all legal issues that have existed up to this

3

point.” EFC No. 8 at 26. The court explained each of the rights petitioner was

4

waiving and made sure that he was doing so intelligently and voluntarily. It did

5

not affirmatively mislead petitioner by giving him inaccurate information upon

6

which he may now base a claim of equitable tolling. See Ford, 590 F.3d at 786-

7

89 (rejecting claim that petitioner was affirmatively misled where district court

8

accurately stated that dismissal for failure to exhaust was without prejudice, even

9

though statute of limitation had already expired). Petitioner is not entitled to

10
11

equitable tolling on his claim that he was misled by the trial court.
Petitioner also contends that he was misled by trial counsel’s

12

“misrepresentations that he had filed a Notice of Appeal, [and that] he was in the

13

midst of preparing and filing an application for post-conviction relief.” ECF No.

14

13 at 7. In support, petitioner attaches and points to a letter dated January 26,

15

2012, from his wife, Sharon Ewing, to trial counsel, William DuBois. See id. Ex.

16

A. In the letter, Mrs. Ewing asks Mr. DuBois to contact petitioner’s prison

17

counselor to clarify his time credits, supply an itemized list of charges for his

18

work and send petitioner his files. See id. But nowhere in the letter, or in any

19

other letter, email or other document in the record, is there any indication that

20

Mr. DuBois was retained to file a notice of appeal or an application for post-

21

conviction relief, or that he ever told petitioner that he would perform those tasks.

22

Petitioner’s contention does not even make much sense. As respondent points

23

out, Mr. DuBois “had just negotiated a hard-won plea bargain that allowed

24

petitioner to plead to three lesser-included offenses, reduced his exposure from

25

multiple life sentences to a determinate 25-year sentence, and included a waiver

26

of appellate rights[;] it would have been inexplicable for [Mr.] DuBois to

27
28

9

1

immediately attempt to undo that agreement by pursuing an unauthorized

2

appeal.” ECF No. 15 (Reply) at 3-4 (footnote omitted). Not surprisingly, years

3

after petitioner pleaded no contest to three lesser-included offenses pursuant to

4

the negotiated plea agreement, Mr. DuBois continued to defend the plea

5

agreement as having helped petitioner avoid “a life sentence [that] appeared

6

certain.” ECF No. 13 Ex. D at 2 (Oct. 29, 2013 letter from Mr. DuBois to

7

petitioner). Petitioner is not entitled to equitable tolling on his unsupported claim

8

that he was misled by trial counsel.

9

Petitioner finally contends that he and his family members “repeatedly

10

ask[ed] [Mr. DuBois] for documents, that were crucial to [p]etitioner’s claim.”

11

Id. at 8. Mr. DuBois’ above-referenced October 29, 2013 letter to petitioner

12

confirms that petitioner did not receive his file from Mr. DuBois before

13

November 2013. See id. Ex. D at 2 (“Before the month of November [2013] is

14

complete we should have a copy of your file in the mail to you at the above

15

address.”). But “[w]hile denial of access to legal files may in some cases

16

constitute the type of external impediment for which [a court may grant]

17

equitable tolling,” a petitioner must “point to specific instances where he needed

18

a particular document . . . and could not have procured that particular document

19

when needed.” Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (citation

20

and internal quotation marks omitted). Here, petitioner does not point to a

21

particular document that he needed to prepare his federal petition but was unable

22

to obtain. Nor does he show that his lack of access to any such document in his

23

legal file “proximately caused” the late filing of his federal petition. See Spitsyn,

24

345 F.3d at 799. After all, the claims in the federal petition – counsel’s advice to

25

plead no contest to three lesser-included offenses amounted to ineffective

26

assistance of counsel because (1) the charges to which petitioner pleaded no

27
28

10

1

contest were barred by the statute of limitation, (2) counsel incorrectly informed

2

petitioner that he faced life in prison if he went to trial, (3) counsel failed to

3

investigate the evidence, including DNA evidence, and (4) counsel failed to raise

4

a doubt about petitioner’s competence – were within petitioner’s own knowledge

5

at the time of the plea. See Ford, 590 F.3d at 790 (denying equitable tolling

6

where, regardless of when counsel provided petitioner with his complete file,

7

petitioner was aware of the factual bases of his claims; under these

8

circumstances, alleged inability to access file was not cause of his untimeliness).

9

And despite not receiving his legal file from Mr. Dubois before November 2013,

10

petitioner managed to file at least two state habeas petitions claiming ineffective

11

assistance of counsel before November 2013. Petitioner is not entitled to

12

equitable tolling based on this claim of lack of access to his legal file. Cf. Gaston

13

v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005) (upholding district court’s

14

rejection of equitable tolling claim where petitioner did not show causal

15

connection between disability and inability to file timely federal petition, and

16

managed to file an earlier state habeas petition), amended, 447 F.3d 1165 (9th

17

Cir. 2006).

18

C.

19

Petitioner has submitted several declarations from relatives and family

20

friends alleging that he is innocent. But they do not excuse his untimeliness.

21

It is well established that “a credible showing of ‘actual innocence’ under

22

Schlup v. Delo, 513 U.S. 298 (1995), excuses the statute of limitations period

23

established by [AEDPA].” Lee v. Lampert, 653 F.3d 929, 931 (9th Cir. 2011)

24

(en banc); accord McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-32 (2013). But

25

“[i]n order to present otherwise time-barred claims to a federal court under

26

Schlup, a petitioner must produce sufficient proof of his actual innocence . . . .”

27
28

11

1

Lee, 653 F.3d at 937. Specifically, “Schlup requires a petitioner ‘to support his

2

allegations of constitutional error with new reliable evidence – whether it be

3

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

4

physical evidence – that was not presented at trial.’” Id. at 930 (quoting Schlup,

5

513 U.S. at 324). “[E]leventh-hour affidavits” and “testimony from fellow

6

inmates, friends or relatives” have limited probative value in considering a claim

7

of actual innocence. House v. Bell, 547 U.S. 518, 552 (2006).

8
9

The required evidence must establish a colorable claim of actual
innocence that the petitioner is innocent of the charge for which he is

10

incarcerated, as opposed to legal innocence as a result of legal error. Schlup, 513

11

U.S. at 321. It is not enough that the evidence show the existence of reasonable

12

doubt; the petitioner must show “that it is more likely than not that no reasonable

13

juror would have convicted him.” Id. at 327. As the Ninth Circuit has put it, “the

14

test is whether, with the new evidence, it is more likely than not that no

15

reasonable juror would have found [the] [p]etitioner guilty.” Van Buskirk v.

16

Baldwin, 265 F.3d 1080, 1084 (9th Cir. 2001).

17

Here, the declarations submitted by petitioner’s relatives and family

18

friends do not constitute new reliable evidence sufficient to establish a colorable

19

claim of actual innocence. Although they insist that petitioner is innocent, and

20

question defense counsel’s advice to plead no contest to three lesser-included

21

offenses in view of inconsistencies in the female victim’s testimony and the

22

possibility of cross-contaminated DNA evidence, this at most raises reasonable

23

doubt, not that, “with the new evidence, it is more likely than not that no

24

reasonable juror would have found [p]etitioner guilty” had he proceeded to trial.

25

Id. Petitioner is not entitled to federal habeas review of his time-barred claims on

26

account of “a credible showing of ‘actual innocence’ under Schlup v. Delo, 513

27
28

12

1

U.S. 298 (1995).” Lee, 653 F.3d at 931.

2
IV.

3
4

It is well established that a federal court “will not review a question of

5

federal law decided by a state court if the decision of that court rests on a state

6

law ground that is independent of the federal question and adequate to support

7

the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). “The state-

8

law ground may be a substantive rule dispositive of the case, or a procedural

9

barrier to the adjudication of the claim on the merits.” Walker v. Martin, 562 U.S.

10
11

307, 315 (2011).
Respondent argues that petitioner’s claims of ineffective assistance of

12

counsel are procedurally defaulted from federal habeas review because the

13

California Supreme Court found the claims barred as untimely, citing In re

14

Robbins, 18 Cal. 4th 770, 780 (1998), and that ground is a state procedural bar

15

that is independent of federal law and adequate to support the state court’s

16

judgment. The court agrees. In Walker, the Supreme Court made clear that

17

California’s timeliness rule, which generally requires state habeas petitions be

18

filed without substantial delay, constitutes a valid procedural bar that precludes

19

federal habeas review. See Walker, 562 U.S. at 315-21. The Court specifically

20

found that the timeliness rule is adequate because it is firmly established and

21

regularly applied, and that it matters not that a state court may deny the petition

22

on the merits if that is easier. See id. at 317-21; see also Bennett v. Mueller, 322

23

F.3d 573, 582-83 (9th Cir. 2003) (California’s timeliness rule is independent).

24

Petitioner’s ineffective assistance of counsel claims accordingly are

25

procedurally defaulted and barred from federal habeas review unless petitioner

26

can demonstrate: (1) cause for the default and actual prejudice resulting from the

27
28

13

1

alleged violation of federal law, or (2) a fundamental miscarriage of justice. See

2

McClesky v. Zant, 499 U.S. 467, 494 (1991). He demonstrates neither.

3
V.

4
5

For the foregoing reasons, respondent’s motion to dismiss the petition for

6

a writ of habeas corpus under 28 U.S.C. § 2254 as untimely and procedurally

7

defaulted (ECF No. 8) is GRANTED.4

8

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a

9

certificate of appealability (COA) under 28 U.S.C. § 2253(c) is DENIED because

10

petitioner has not demonstrated that “jurists of reason would find it debatable

11

whether the petition states a valid claim of the denial of a constitutional right and

12

that jurists of reason would find it debatable whether the district court was correct

13

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

14

SO ORDERED.

15

DATED: June 20, 2017
CHARLES R. BREYER
United States District Judge

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

4

Petitioner’s motions for an evidentiary hearing (ECF No. 16) and for
appointment of counsel (ECF No. 17) are DISMISSED as moot and without merit.

14

1
2
3

G:\PRO-SE\CRB\HC.16\Ewing, D.16-5875.mtd.wpd

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

15