Torres v. Sherman et al

Filing 19

ORDER DISMISSING Petition for Writ of Habeas Corpus. The Court dismisses the Petition with prejudice as untimely. Further, the Court declines to issue a certificate of appealability. The Clerk of Court is instructed to enter judgment accordingly and close this case. Signed by Judge Michael M. Anello on 10/4/2018.(All non-registered users served via U.S. Mail Service)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LARRY LUIS TORRES,

Case No.: 17cv978-MMA(BGS)
Petitioner,

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v.

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ORDER DISMISSING PETITION
FOR WRIT OF HABEAS CORPUS

STUART SHERMAN, Warden,
Respondent.

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[ Doc. No. 1]

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Petitioner Larry Luis Torres (hereinafter referred to as “Petitioner”), a state

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prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas

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Corpus (“Petition”) pursuant to Title 28, United States Code section 2254.1 Doc. No. 1

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(“Pet.”). Petitioner challenges his convictions for second degree murder and

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premeditated attempted murder. Id. at 15; see also Lodgment (“Lodg.”) 1 Vol. 2 at 130.2

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Respondent answered the Petition on October 11, 2017 [Doc. No. 11 (“Ans.”)] and

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Petitioner filed a traverse on January 29, 2018 [Doc. No. 18 (“Trav.”)]. As outlined

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Although this case was randomly referred to United States Magistrate Judge Bernard G. Skomal
pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has determined that neither a Report and
Recommendation nor oral argument are necessary for the disposition of this matter. See S.D. Cal.
Civ.L.R. 72.1(d).
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All record citations in the Order are based on CM/ECF page numbers.
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below, the Court DISMISSES the Petition with prejudice as untimely, thereby, declining

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to decide the Petition on the merits.

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FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from the California Court of Appeal’s opinion in

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People v. Contreras, No. D047266, 2006 Cal. App. Unpub. LEXIS 11306 (Dec. 15,

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2006):

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The Organized Entres Kabrones (OEK) and Locos are rival Hispanic street
gangs. Martinez and Lamas were members of the OEK gang, while Torres
and Contreras either were Locos members or backed the Locos gang. In the
evening of January 6, 2004, Martinez, his girlfriend Becky Soto and Lamas
went to the Key Largo apartments in El Cajon to visit Lamas’s girlfriend in
Martinez’s Honda Civic. The Key Largo apartments are located on Locos’s
“turf” and Lamas often received threats and whistles when he visited his
girlfriend at her apartment. At that time, Lamas was under house arrest for
possession of a concealed knife and the outing violated his curfew.
After visiting Lamas’s girlfriend, the threesome went to another apartment
complex to find their friends, but were directed to a trailer park. When Lamas
got into the Honda he noticed a dark colored Mustang and saw the car again
on the way to the trailer park. Soto made a U-turn to see if the Mustang
followed them; eventually, the Mustang ended up right behind them. Soto
noticed two people in the Mustang and that the driver had a goatee and black
hair. Lamas and Soto later identified Contreras as the driver of the Mustang
and Torres as the passenger.
After Lamas had Soto pull over, the Mustang stopped in the middle of the
street in front of them. Lamas did not have any weapons and learned that
Martinez had a pocketknife. Soto told Martinez to put the knife away, but did
not remember what he did with it. Martinez walked to the passenger side of
the Mustang and Lamas went to the passenger side rear of the car. Although
Lamas recognized the defendants, he could not recall the context. Lamas
identified himself as OEK and asked the defendants in a commanding voice
where they were from, meaning what gang, [he] received a response that he
did not understand and then heard someone say “that’s cool.” Soto
remembered that Lamas raised his hands as if he wanted to fight when he
walked toward the Mustang, but saw nothing in his hands.
As Martinez leaned down to look inside the car with his hands by his sides,
Lamas tried to push him away because he did not know what would happen.
Lamas heard someone inside the car say “fuck OEK” and saw Martinez
straighten up with a surprised look on his face. Lamas also saw a gun come
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up from inside the Mustang, heard a shot and saw Martinez grab his stomach.
Torres then shot Lamas in the back as he ran toward the Honda. Lamas never
saw Martinez take the knife out of his pocket and neither he nor Soto saw
Martinez make any sudden or threatening moves.
After the Mustang “peeled out,” Lamas ran back and saw that Martinez
had been shot in the head. Lamas searched Martinez’s pockets for a cell phone
and pulled the pocketknife out. He dropped the knife, ran back to the Honda
to call the police, with the first officers arriving in less than a minute. Police
later recovered the folded pocketknife and found no other weapons at the
scene.
The police located the Mustang and took the defendants into custody. A
search of the car revealed a loaded .41 caliber revolver, containing both
defendants’ fingerprints, and a loaded .25 caliber semiautomatic pistol. Police
also found two bags containing marijuana and a notebook with Contreras’s
name and drug weights and dollar amounts. Blood spatter on the Mustang
matched Martinez and Contreras had an oozing stab wound on his back.
Lamas survived a single gunshot wound to the abdomen, but Martinez died
from gunshot wounds to his head and abdomen. The .41 caliber bullet
removed from Martinez’s brain matched the weapon found in the Mustang
and the .25 caliber bullet removed from his abdomen was consistent with the
other weapon in the Mustang, but could not be positively identified as having
been fired from that gun. The angle of bullet that entered Martinez’s forehead
suggested Martinez was bending down when he was shot.
The defendants were charged with murder and attempted murder. As to
both counts, it was alleged that the defendants intentionally discharged a
firearm and committed the crime for the benefit of a gang. Special
circumstances were also alleged as to the murder count of discharging a
firearm from a motor vehicle and committing the offense for the benefit of a
gang. Also, as to the attempted murder, it was alleged that great bodily injury
had been inflicted.
The matter proceeded to trial and both defendants testified. About a week
before the murder, OEK gang members stabbed Contreras while he was in
OEK territory. After the stabbing, Locos gang member Frank Soto (no relation
to Becky Soto), gave Contreras a gun to protect himself. Thereafter, Contreras
never left the house without the gun and ultimately used it to shoot Martinez.
Contreras claimed Martinez suddenly straightened from a crouched position
and had something in his hand. Contreras believed Martinez had a gun and
admitted that he and Torres almost simultaneously fired their weapons.
Contreras then heard Torres fire his gun a second time. Torres claimed he fired
his weapon after Martinez lunged at him and that he fired again when Lamas
came toward him. Although Torres admitted he did not see a gun, he believed
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that Martinez was going to shoot him.
At the conclusion of testimony, the People successfully amended the
information to add a separate enhancement to the murder charge that it was
perpetrated by a firearm from a vehicle against a person outside the vehicle.
A jury found Contreras guilty of first degree murder, Torres guilty of second
degree murder, and both guilty of premeditated attempted murder. The jury
also found true all special circumstance allegations attached to both counts.
The trial court sentenced Contreras to state prison for life without the
possibility of parole, plus a life term and an additional term of 50 years to life,
and Torres to state prison for 70 years to life, with an additional three-year
term.

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Lodg. 10 at 2-5. 3

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Petitioner and Contreras both filed unsuccessful appeals. See Lodg. 3; see also

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Lodg. 4. Petitioner argued that the trial court erred in admitting certain evidence, there

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was insufficient evidence to sustain the gang enhancements, and the trial court erred in

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permitting the prosecution to amend the information to add a “drive-by” enhancement.

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See Lodg. 3. On August 14, 2006, Contreras filed a habeas corpus petition in the

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California Court of Appeal alongside his appeal arguing, among other things, ineffective

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assistance of counsel for failing to present Martinez’s juvenile court record pursuant to

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California Welfare and Institutions Code section 827. See Lodg. 8. Contreras attached a

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petition for disclosure of Martinez’s juvenile court record, the June 8, 2006 order

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granting that petition, and Martinez’s juvenile court record. See id. at 44-76. On August

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21, 2006, the California Court of Appeal ordered the Clerk’s office “to send a copy of

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[Contreras’ state petition], the record submitted with the petition, and [the June 8, 2006]

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order, to any party or counsel in People v. Contreras (D047266) who is not a party or

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counsel in [Contreras’ habeas corpus proceedings].” See Lodg. 9. The California Court

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of Appeal denied Contreras’ petition on December 15, 2006. See Lodg. 11. On that

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This Court presumes the State Court’s factual determinations to be correct absent clear and
convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340
(2003); see also Parke v. Raley, 506 U.S. 20, 35 (1992) (holding findings of historical fact, including
inferences properly drawn from such facts, are entitled to statutory presumption of correctness).
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same date, the California Court of Appeal affirmed Torres’ judgment. See Lodg. 10.

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Petitioner appealed to the California Supreme Court on January 12, 2007, arguing that the

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trial court erred in admitting certain evidence, there was insufficient evidence to sustain

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the gang enhancements, and the trial court erred in permitting the prosecution to amend

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the information to add a “drive-by” enhancement. See Lodg. 12. The California

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Supreme Court summarily denied review without citation to authority on February 21,

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2007. See Lodg. 13.

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On June 24, 2014, Petitioner filed a petition pursuant to California Welfare and
Institutions Code section 827 with the San Diego County Superior Court for the

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disclosure of Martinez’s juvenile court record. See Doc. No. 1-1 (“Pet. Ex.”) at 48-67.

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This petition was granted on September 11, 2014. See id. at 80. On September 1, 2015,4

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Petitioner constructively filed a petition for writ of habeas corpus in the San Diego

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County Superior Court arguing that non-disclosure of Martinez’s juvenile court record

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violates Brady v. Maryland, 373 U.S. 83 (1963) because it is exculpatory evidence that

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could have supported his self-defense claim at trial. See Lodg. 14. The court denied the

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petition as untimely on November 25, 2015, but noted the petition also failed on the

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merits. See Lodg. 15. On February 10, 2016, Petitioner filed a petition for writ of habeas

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corpus in the California Court of Appeal, 4th Appellate Division, arguing the prosecution

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failed to disclose Martinez’s juvenile court record in violation of Brady. See Lodg. 16.

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The Court of Appeal denied the petition on February 26, 2016. See Lodg. 17. Petitioner

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According to the “mailbox rule,” a habeas petition is deemed constructively filed when the pro se
prisoner delivers it to prison authorities for forwarding to the clerk of the court. Ramirez v. Yates, 571
F.3d 993, 996 n.1 (9th Cir. 2009). In the instant case, it is unclear when Petitioner delivered the state
habeas petition to prison authorities (see Pet. Ex. N. at 148), however, because he signed the petition on
September 1, 2015, the Court liberally construes September 1, 2015 as the mailing date. See Marsh v.
Soares, 223 F.3d 1217, 1218 n. 1 (10th Cir. 2000) (“Liberal application of the mailbox rule . . . causes us
to treat the petition as placed in the hands of prison authorities on the same day it was signed.”); see also
Torres v. Cullen, No. CIV S-09-2150 JAM GGH P, 2011 U.S. Dist. LEXIS 978 at *4-5 n.2 (E.D. Cal.
Jan. 4, 2011) (citing Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001)).
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constructively filed a petition for writ of habeas corpus in the California Supreme Court

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on April 26, 2016, raising the same argument as his previous petitions. See Lodg. 18.

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The California Supreme Court denied the petition without comment, on April 19, 2017.

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See Lodg. 19. Finally, Petitioner constructively filed the instant Petition with this Court

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on May 7, 2017. See Pet.

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SCOPE OF REVIEW

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Title 28, United States Code section 2254(a), sets forth the scope of review for
federal habeas corpus claims:

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The Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he
is in custody in violation of the Constitution or laws or treaties of the United
States.

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28 U.S.C. § 2254(a).

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DISCUSSION

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Petitioner presents a single ground for relief: the prosecution failed to obtain, and

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then disclose, Martinez’s juvenile court record pursuant to California Welfare and

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Institutions Code section 827, in violation of Brady. See Pet. Respondent argues the

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Petition should be dismissed as untimely. See Ans. at 14-17. Respondent alternatively

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argues that the state courts correctly determined there is no merit to Petitioner’s Brady

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claim. Id. at 20-26. In light of the Court’s decision that the Petition is untimely, the

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Court declines to address Respondent’s arguments regarding the merits of Petitioner’s

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claim.

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A. The AEDPA’s Statute of Limitations
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

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effective April 24, 1996, a one year statute of limitations applies to an application for a

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writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28

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U.S.C. § 2244(d)(1). The one year limitations period runs 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;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed,
if the applicant was prevented from filing by 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
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A)-(D).

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Petitioner argues that the date he discovered the factual predicate of his claim is

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later than the date his judgment became final. Therefore, he contends the discovery of

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the factual predicate should trigger the commencement of the statute limitations. See

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Trav. at 7. Specifically, Petitioner claims that the factual predicate of his Brady claim

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was not discoverable until he received Martinez’s juvenile court record in August or

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September of 2014. See Trav. at 7. Respondent argues that the date the judgment

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became final is later than the factual predicate date and should commence the statute of

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limitations. See Ans. at 14-15. Specifically, Respondent contends that Petitioner could

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have discovered the factual predicate of his claim around August 21, 2006, when the

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Court of Appeal consolidated Contreras’ habeas corpus petition with Petitioner and

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Contreras’ direct appeal and ordered a copy of the habeas corpus record be sent to all

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parties or counsel. See Ans. at 15. That record included Martinez’s juvenile court

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record. See Lodg. 8 at 48-76. In response, Petitioner argues that the information in

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Contreras’ file is irrelevant to the timeliness of the instant Petition, and that it establishes

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that Martinez’s juvenile court record was not disclosed at trial. See Trav. at 7.

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Petitioner’s judgment became final by the conclusion of direct review on May 22,
2007, ninety days after the California Supreme Court denied Petitioner’s petition for

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review on February 21, 2007.5 See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999)

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(explaining that direct review “includes the period within which a petitioner can file a

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petition for a writ of certiorari from the United States Supreme Court, whether or not the

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petitioner actually files such a petition”); see also Cal. R. Ct. 8.532(b)(2)(A) (stating that

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California Court decisions are final on filing the denial of a petition for review).

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Petitioner maintains the statute of limitations runs from the date he received

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Martinez’s juvenile court record in August or September of 2014 because that is when he

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discovered the factual predicate of his claim. See Trav. at 7. Section 2244(d)(1)(D),

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however, does not delay commencement of the limitations period until the petitioner

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actually discovers the factual predicate; it delays it until the factual predicate “could have

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been discovered with due diligence.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir.

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2012) (emphasis added). Due diligence requires reasonable diligence for the

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circumstances. Id.; Quezada v. Scribner, 611 F.3d 1165, 1168 (9th Cir. 2010). The “due

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diligence clock” begins when the individual knows, or through due diligence could

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discover, the important facts, regardless of when their legal significance is actually

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discovered. Ford, 683 F.3d at 1235.

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Petitioner received Martinez’s juvenile court record in or around August 2006,

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when the Clerk’s office sent him Contreras’ habeas corpus record. See Lodg. 9.

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Petitioner does not dispute receipt of Contreras’ habeas corpus record, including

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Martinez’s juvenile court record. See Trav. Had Petitioner exercised due diligence by

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reading Contreras’ record upon receipt, he would have discovered Martinez’s juvenile

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court record at that time.

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Respondent argues that the judgment became final on March 7, 2007, when the California Court of
Appeal issued a remittitur, however, a “remittitur merely designates the judgment of the appellate
tribunal which is authenticated to the court from which the appeal is taken and corresponds to the
mandate used in the practice of the United States Supreme Court.” See Combs v. Haddock, 209 Cal.
App. 2d 627, 631 (1962); see also Prasad v. Yates, No. 2:09-cv-0980-FCD-JFM (HC), 2009 U.S. Dist.
LEXIS 105546, at *3-4 (E.D. Cal. Nov. 11, 2009) (finding the remittitur date did not finalize the
judgment).
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Even if Petitioner had not received Martinez’s juvenile court record around August

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2006, Petitioner was aware that Martinez had a criminal past at trial. For example,

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comments were made to police investigators mentioning Martinez’s possible juvenile

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court record (see Trav. at 14), and Becky Soto affirmatively answered that Martinez had

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been in prison before a relevance objection was sustained (see Lodg. 2 Vol. 5 at 160-61).

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Further, at trial Petitioner “tried to learn why Martinez was incarcerated, but it was never

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disclosed.” See Pet. at 14. As such, Petitioner knew of Martinez’s juvenile court record

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at the time of trial. Thus, Petitioner could have discovered the factual predicate of his

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Brady claim even sooner than August 2006, if he had exercised due diligence shortly

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after learning of Martinez’s criminal past at trial.

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The Court concludes that Petitioner, with due diligence, could have discovered the

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factual predicate of his claim before, or shortly after, receiving Martinez’s juvenile court

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record around August 2006. Because the May 22, 2007 finality date is later than the

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August 2006 factual predicate date, the limitations period began on May 23, 2007, and

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expired on May 23, 2008. See 28 U.S.C. § 2244(d)(1); see also Patterson v. Stewart, 251

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F.3d 1243, 1246 (9th Cir. 2001) (applying Fed. R. Civ. P 6(a) to statutes of limitation).

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The Petition was filed on May 7, 2017, 8 years, 11 months, and 14 days after the statute

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of limitations expired. Therefore, the Petition is untimely, unless sufficiently tolled.

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B. Tolling
1. Petitioner Is Not Entitled to Statutory Tolling
Section 2244(d)(2) provides the “time during which a properly filed application for

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State post-conviction or other collateral review with respect to the pertinent judgment or

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claim is pending shall not be counted toward” the one-year limitations period. 28 U.S.C.

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§ 2244(d)(2). The “statute of limitations is not tolled from the time a final decision is

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issued on direct state appeal and the time the first state collateral challenge is filed

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because there is no case ‘pending’ during that interval.” See Nino v. Galaza, 183 F.3d

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1003, 1006 (9th Cir. 1999); see also Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.

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2003) (“[S]ection 2244(d) does not permit the reinitiation of the limitations period that

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has ended before the state petition was filed.”).

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As discussed previously, the statute of limitations expired on May 23, 2008, and

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Petitioner constructively filed his first state habeas petition on September 1, 2015. As

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such the limitations period expired prior to the filing of Petitioner’s first state habeas

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petition. Because the limitations period is not tolled after state post-conviction

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proceedings are final and before state habeas proceedings are initiated, Petitioner is not

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entitled to statutory tolling under § 2244(d)(2). Nino, 183 F.3d at 1006. As such, the

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instant Petition is time-barred, unless Petitioner can establish an entitlement to equitable

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tolling. See Bills v. Clark, 628 F.3d 1092, 1097-98 (9th Cir. 2010).
2. Petitioner Fails to Show That Equitable Tolling Is Warranted

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A petitioner is entitled to equitable tolling if he shows that (1) he has been pursuing

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his rights diligently and (2) some extraordinary circumstance stood in his way, preventing

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timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). Again, reasonable diligence

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is required. Id. at 653. Equitable tolling is available only when extraordinary

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circumstances beyond the prisoner’s control make it impossible to file the petition on

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time, and those circumstances were the cause of the late filing. Bills, 628 F.3d at 1097;

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see also Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (finding that equitable

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tolling is only available “[w]hen external forces, rather than a petitioner’s lack of

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diligence, account for the failure to file a timely claim”). The petitioner bears the burden

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of demonstrating his entitlement to equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408,

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418 (2005).

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Petitioner argues that he is entitled to equitable tolling because he “has been

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pursuing his rights diligently since at least 2007” and he “knew nothing of Brady [or] of a

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prosecutor’s duty to disclose exculpatory evidence until 2012.” See Trav. at 7. Petitioner

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claims he was diligent in 2007 because he met a possibly exonerating witness and was

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working to gather the resources to interview him. See Pet. at 13-14. Once his family

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hired an attorney and investigator at the end of 2008, the witness decided he was no
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longer able to help Petitioner. Id. At that point, the attorney said he would review the

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trial transcripts, but nothing came of the review. See Pet. At 13-14. Petitioner then

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“waited until late 2011 and early 2012 before [he] finally decided to study [his] case and

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conduct legal research.” Id. Respondent argues Petitioner has not been diligent because

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there is a near ten-year delay between the receipt of Martinez’s juvenile court record and

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the filing of the instant Petition. See Ans. at 17. Respondent further argues that

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Petitioner’s lack of knowledge of Brady until 2012 is insufficient to show extraordinary

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circumstances. See id.

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Petitioner has not established diligence during the entire time he seeks to toll. See

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Pet. at 13-14. While he alleges diligence between 2007 and 2008 and from 2011 on,

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Petitioner does not assert any facts to support his diligence from 2008 when the witness

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withdrew to late 2011 when Petitioner began his legal research. See Smith v. McGinnis,

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208 F.3d 13, 17 (2d Cir. 2000) (“[T]he party seeking equitable tolling must have acted

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with reasonable diligence throughout the period he seeks to toll.”); White v. Long, No.

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CV 13-02121 SVW (AN), 2013 U.S. Dist. LEXIS 116054, at *17 (C.D. Cal., Aug. 12,

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2013) (explaining that equitable tolling requires a showing of diligence during the time

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the party seeks to toll). As such, Petitioner has not demonstrated the requisite diligence

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and is not entitled to equitable tolling.

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Further, Petitioner does not establish that extraordinary circumstances stood in his

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way of timely filing. First, Petitioner’s lack of knowledge of Brady is not an

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extraordinary circumstance warranting equitable tolling. Ignorance of the law is

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regularly rejected as a basis for equitable tolling because it does not demonstrate

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extraordinary circumstances, but common circumstances many prisoners experience. See

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Ford v. Pliler, 590 F.3d 782, 789 (9th Cir. 2009) (noting that the equitable tolling

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“standard has never been satisfied by a petitioner’s confusion or ignorance of the law

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alone”); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir. 2009)

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(“[A] pro se petitioner’s confusion or ignorance of the law is not, itself, a circumstance

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warranting equitable tolling.”); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)
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(holding that “a pro se petitioner’s lack of legal sophistication is not, by itself, an

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extraordinary circumstance”). Second, Petitioner’s financial inability to immediately hire

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an investigator or attorney after meeting the potential witness in 2007 is not an

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extraordinary circumstance. See McMillan v. Woods, No. 2:11-CV-10390, 2011 U.S.

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Dist. LEXIS 150241, at *11-12 (E.D. Mich. Dec. 8, 2011) (finding no extraordinary

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circumstance existed where the petitioner argued he was “entitled to equitable tolling of

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the limitations period because he was unknowledgeable in the law and was waiting for

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his family and friends to raise money to hire an attorney to pursue his post-conviction

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remedies”). Consequently, the Court finds that Petitioner’s lack of knowledge of Brady

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and his financial inability to immediately obtain resources are not extraordinary

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circumstances that warrant equitable tolling of the AEDPA statute of limitations.

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Thus, Petitioner has not demonstrated the requisite diligence or any extraordinary

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circumstances that prevented him from timely filing. Therefore, he is not entitled to

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equitable tolling. See Holland 560 U.S. at 649. Accordingly, Petitioner’s Petition is

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untimely.

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CERTIFICATE OF APPEALABILITY

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The federal rules governing habeas cases brought by state prisoners require a

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district court that dismisses or denies a habeas petition to grant or deny a certificate of

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appealability in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll.

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§ 2254. For a certificate of appealability to issue, a petitioner must show that (1)

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reasonable jurists would find it debatable whether there is a valid claim of constitutional

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denial, and (2) reasonable jurists could debate whether the district court reached the

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proper procedural conclusion. Slack v. McDaniel, 529 U.S. 473, 478 (2000). Because

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Petitioner has not made the showing that reasonable jurists could debate this procedural

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conclusion, the Court DECLINES to issue a certificate of appealability.

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//

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//

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//
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17cv978-MMA(BGS)

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CONCLUSION

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Based on the foregoing and having reviewed the files herein, the Court DISMISSES

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the Petition with prejudice as untimely. Further, the Court DECLINES to issue a

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certificate of appealability. The Clerk of Court is instructed to enter judgment accordingly

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and close this case.

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IT IS SO ORDERED.
Dated: October 4, 2018

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17cv978-MMA(BGS)