Kelly v. Secretary of CDCR et al

Filing 12

ORDER Granting Motion to Dismiss Petition for Writ of Habeas Corpus and Denying a Certificate of Appealability (ECF No. 9 ). Signed by Chief District Judge Cynthia Bashant on 03/10/2025. (All non-registered users served via U.S. Mail Service)(mjw)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RUSSELL J. KELLY,
Petitioner,

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v.

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Case No. 24-cv-01233-BAS-AHG

SECRETARY OF THE CDCR, et al.,
Respondents.

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ORDER GRANTING MOTION
TO DISMISS PETITION FOR
WRIT OF HABEAS CORPUS
AND DENYING A CERTIFICATE
OF APPEALABILITY (ECF No. 9)

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Before the Court is a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

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§ 2254 (“Petition”), filed by state prisoner Russell J. Kelly (“Petitioner”). (ECF No. 1.)

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Petitioner claims the refusal to provide him with a parole hearing violated his rights under

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the Fifth, Eighth, and Fourteenth Amendments. (Id. at 10–23.) Respondent James Hill

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(“Respondent”), warden at the Richard J. Donovan Correctional Facility, 1 has filed a

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Motion to Dismiss and a Notice of Lodgment of the state record. (ECF Nos. 9, 10.)

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Respondent contends Petitioner’s claims are untimely and not cognizable under federal

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Petitioner erroneously lists the California Department of Corrections and Rehabilitation’s Secretary
and California Attorney General Rob Bonta as respondents. However, the correct respondent in this
case is the warden of the facility where the petitioner is incarcerated—specifically, James Hill, the
warden of R.J. Donovan Correctional Facility. See Rumsfeld v. Padilla, 542 U.S. 426, 434–35 (2004);
Rule 2(a) of the Rules Governing § 2254 Cases in the United States District Courts.
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habeas review. (ECF No. 9-1 at 8–12.) Petitioner has filed an Opposition. (ECF No. 11.)

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For the reasons set forth below, the Court grants Respondent’s Motion to Dismiss,

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dismisses the Petition, and denies a Certificate of Appealability.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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On February 27, 1997, a jury convicted Petitioner of first-degree robbery of an

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inhabited dwelling. (ECF No. 10-2 at 17.) On May 7, 1997, after the trial court found he

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had two prior felony convictions which constituted strikes under California’s Three Strikes

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Law, he was sentenced to an indeterminate term of thirty years to life in state prison. (Id.)

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Proposition 57, approved by California voters in 2016, provides that: “Any person

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convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for

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parole consideration after completing the full term for his or her primary offense.” Cal.

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Const. art. I, § 32(a)(1). Under regulations implementing Proposition 57, the Board of

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Parole Hearings (“Parole Board”) set Petitioner’s parole eligibility date as October 6, 2020,

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based on the full six-year term for his robbery conviction. (ECF No. 1-2 at 12.)

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On November 13, 2019, Petitioner was present with counsel at his first parole

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hearing based on his minimum eligible parole date, which resulted in a seven-year parole

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denial. (ECF No. 10-2 at 17.) Petitioner was informed he would not be referred for an

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October 6, 2020, Proposition 57 parole hearing “because he recently had a hearing based

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on his minimum eligible parole date.” (ECF No. 10-6 at 1.) Although Petitioner was

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informed he had a right to appeal that decision, he did not do so. (Id.)

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On December 23, 2019, Petitioner filed a habeas petition in the State Superior Court

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claiming the Parole Board erred in refusing to give him an October 6, 2020, parole hearing

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pursuant to Proposition 57, and claiming ineffective assistance of counsel for failing to

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argue for a hearing. (ECF No. 1-2 at 4–5.) The Superior Court denied habeas relief on the

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basis that robbery of an inhabited dwelling constituted a violent felony under state law;

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thus, Proposition 57 did not apply, and counsel could not have been ineffective in failing

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to argue it applied. (Id. at 6–7.)

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On October 16, 2020, Petitioner filed a habeas petition in the State Appellate Court
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raising the same claim. (ECF No. 10-5 at 1–35.) On October 21, 2020, the State Appellate

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Court denied the petition, finding that Petitioner had failed to exhaust administrative

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remedies by not appealing the Parole Board’s decision to refuse a Proposition 57 hearing.

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(ECF No. 10-6 at 1–3.)

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Petitioner exhausted his administrative remedies on January 1, 2023. (ECF No. 1-2

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at 12.) On March 8, 2023, he filed a habeas petition in the State Superior Court, asserting—

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as he does here—that the California Constitution, as amended by Proposition 57, entitles

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him and others similarly situated under California’s Three Strikes Law to a parole

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eligibility hearing after serving the full term for their commitment offense. (ECF No. 10-

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7 at 1–72; ECF No. 1 at 10–23.) He argues that this provision effectively converts

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prisoners’ indeterminate life sentences into determinate terms—in his case, a six-year

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sentence with a parole eligibility date of October 6, 2020. (Id.) He contends that the state’s

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refusal to grant him a parole hearing on that date unlawfully prolonged his incarceration

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by seven years, demonstrating deliberate indifference to violations of his federal

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constitutional rights, including: (1) fair parole proceedings under the Fifth Amendment, (2)

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due process and equal protection under the Fourteenth Amendment, and (3) freedom from

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cruel and unusual punishment under the Eighth Amendment. (Id.)

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On April 4, 2023, the Superior Court denied relief, once again finding Proposition

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57 did not apply because Petitioner had been convicted of a violent felony offense. (ECF

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No. 10-8 at 4.) The Court also noted there was sufficient evidence to deny parole, including

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that Petitioner “present[ed] a high risk for violence. . . [and] . . . has a history of arrests

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and convictions for batteries and robberies; in the instant case Petitioner put a gun to the

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victim’s head and demanded she give Petitioner money orders, which she did.” (Id. at 5.)

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The Court found that “while incarcerated Petitioner failed to avail himself of therapeutic

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treatment programs to deal with the anger or other significant issues with which Petitioner

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has long grappled,” had “incurred twenty-one rule violations—including five for violence

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or violence-related conduct—with the most recent in June 2019, just five months before

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the hearing . . . [and] . . . showed a lack of insight because he alleges an implausible
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conspiracy between the judge and district attorney to convict Petitioner of a third strike.”

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(Id.)

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Petitioner filed a habeas petition in the State Appellate Court on April 20, 2023,

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which was denied on April 26, 2023. (ECF Nos. 10-2, 10-9.) The Appellate Court stated:

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“His claims, asserted several years after his parole denial with no adequate explanation of

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the delay, are barred as untimely.” (ECF No. 10-9 at 2.) The Court also found the claims

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lacked merit because: “Nothing in Proposition 57 itself restricts the Board’s discretion in

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setting the next hearing date after an inmate is found unsuitable for parole.” (Id.)

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On May 10, 2023, Petitioner presented his claims in a habeas petition filed in the

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State Supreme Court, which was summarily denied without a statement of reasons on

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August 9, 2023. (ECF Nos. 10-10, 10-11.) The instant federal Petition was filed on July

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15, 2024. (ECF No. 1.)

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II.

ANALYSIS

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Respondent seeks dismissal of the Petition, arguing that: (1) the claims are not

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cognizable under federal habeas review because they rely solely on the interpretation of

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state law; (2) the Court lacks subject matter jurisdiction because the claims do not lie at the

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core of habeas, as success on the merits would not necessarily result in immediate or

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accelerated release, but merely a new parole hearing; and (3) the Petition is untimely

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because the one-year statute of limitations expired before it was filed. (ECF No. 9-1 at 8–

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12.)

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Petitioner opposes the motion, arguing that he has stated a cognizable federal claim

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because the California Constitution, as amended by Proposition 57, effectively converted

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his indeterminate life sentence into a determinate six-year term, entitling him to immediate

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release after serving 26 years, and that the denial of a Proposition 57 parole hearing

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unlawfully prolonged his incarceration by seven years, violating the Eighth Amendment’s

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prohibition on cruel and unusual punishment, depriving him of due process and equal

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protection under the Fourteenth Amendment, and denying him fair parole proceedings

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under the Fifth Amendment. (ECF No. 11 at 6–12.) He contends this Court has subject
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matter jurisdiction in this action because he resides in the Southern District of California,

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all the events occurred here, and there is complete diversity. (Id. at 12–13.) He argues the

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Petition is timely because the one-year statute of limitations applies only to collateral

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attacks on state court judgments, not challenges to parole release. (Id. at 13–16.)

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A.

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Respondent first contends Petitioner has failed to state a cognizable federal habeas

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claim because his claims rely entirely on the interpretation of state law. (ECF No. 9-1 at

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8–9.) To state a federal habeas corpus claim under § 2254, a state prisoner must allege

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both that he is in custody pursuant to a “judgment of a State court” and that he is in custody

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in “violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

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§ 2254(a). There is no dispute Petitioner is in custody pursuant to a state court judgment.

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Respondent correctly asserts that state law errors are not subject to correction under

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federal habeas review. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (noting

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that “alleged errors in the application of state law are not cognizable in federal habeas

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corpus” proceedings); Sturm v. California Youth Authority, 395 F.2d 446, 448 (9th Cir.

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1967) (“[A] state court’s interpretation of its [sentencing] statute does not raise a federal

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question.”). The United States Supreme Court has held that to the extent California law

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creates a liberty interest in parole it is a “state interest,” which does not create a federal

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right to be released on parole. Swarthout v. Cooke, 562 U.S. 216, 219–21 (2011) (citing

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Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 16 (1979)) (stating

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there is no federal constitutional right to parole release). Nevertheless, the Supreme Court

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found that the existence of such a liberty interest would allow state prisoners deemed

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unsuitable for parole to bring a federal habeas claim alleging that they were denied an

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opportunity to be heard and a statement of reasons for the denial, and, if successful, would

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be entitled to a new parole hearing. Cooke, 562 U.S. at 220–21; see also Miller v. Oregon

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Bd. of Parole and Post-Prison Supervision, 642 F.3d 711, 716 (9th Cir. 2011) (“The

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Supreme Court held in Cooke that in the context of parole eligibility decisions the due

Failure to State a Cognizable Claim

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process right is procedural, and entitles a prisoner to nothing more than a fair hearing and

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a statement of reasons for a parole board’s decision.”).

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The district courts are divided on whether Proposition 57 creates a liberty interest

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under state law that triggers federal procedural protections, and the Ninth Circuit has not

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addressed the issue. See, e.g., Atuatasi v. Montgomery, No.: 22cv1469-JO (NLS), 2023

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WL 3668528, at *3, (S.D. Cal. May 25, 2023) (collecting cases). The Court need not

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resolve whether the Petition asserts a federal constitutional claim based on the denial of a

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Proposition 57 parole hearing, as opposed to merely raising a state law claim, because, as

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set forth below, it must be dismissed as untimely and for failing to invoke the Court’s

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habeas jurisdiction.

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B.

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Respondent argues that Petitioner has not established this Court’s subject matter

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jurisdiction under 28 U.S.C. § 2254 because success on his claims would not necessarily

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lead to immediate or speedier release, but only in another parole hearing. (ECF No. 9-1 at

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10–11.)

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indeterminate life term to a determinate term of six years, and he is entitled to be released

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on parole because he has been imprisoned for over 26 years on a six-year sentence. (ECF

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No. 11 at 12–13.)

Habeas Jurisdiction

Petitioner maintains that Proposition 57 modified his sentence from an

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Proposition 57 provides that “[a]ny person convicted of a nonviolent felony offense

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and sentenced to state prison shall be eligible for parole consideration after completing the

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full term for his or her primary offense,” but does not guarantee release after the expiration

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of the full term. See Cal. Const. art. I, § 32(a)(1). Thus, even if Petitioner prevails on his

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claim that the denial of an October 6, 2020, Proposition 57 parole eligibility hearing

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violated his federal constitutional rights—following the seven-year parole denial at his

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initial life sentence parole eligibility hearing on November 13, 2019—he would only

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become eligible for parole consideration under Proposition 57, which does not necessarily

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entitle him to an earlier release from prison. Id.; see also Atuatasi, 2023 WL 3668528, at

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*2 (finding that because Proposition 57 merely provides eligibility for parole consideration,
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not release, “many courts in this circuit have consistently held that the possibility of parole

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under Proposition 57 does not state a legitimate habeas corpus claim.”) (collecting cases).

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“[W]hen a prisoner’s claim would not ‘necessarily spell speedier release,’ that claim

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does not lie at ‘the core of habeas corpus,’ and may be brought, if at all, under [42 U.S.C.]

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§ 1983.” Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011) (quoting Wilkinson v. Dotson,

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544 U.S. 74, 82 (2005)); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“[W]hen a state

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prisoner is challenging the very fact or duration of his physical imprisonment, and the relief

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he seeks is a determination that he is entitled to immediate release or a speedier release

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from that imprisonment, his sole federal remedy is a writ of habeas corpus.”); Nettles v.

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Grounds, 830 F.3d 922, 927–31 (9th Cir. 2016) (en banc) (holding that claims which would

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result in immediate release if successful fall within the core of habeas corpus, whereas

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claims which would not necessarily affect the length of time to be served fall outside the

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core of habeas corpus and must be brought under § 1983); see also Borstad v. Hartley, 668

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F. App’x 696, 697 (9th Cir. 2016) (holding that success on petitioners’ constitutional

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claims based on lengthening of intervals between parole hearings “would not necessarily

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result in a shortening of their sentences” and therefore no jurisdiction to grant habeas

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relief).

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As the Ninth Circuit has noted, even where a prisoner could show entitlement to a

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parole hearing, the parole board would still need to consider “all relevant, reliable

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information” to determine “suitability for parole.” Nettles, 830 F.3d at 935. The parole

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board could then deny parole “on the basis of any of the grounds presently available to it.”

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Id. Petitioner claims he should have been given a new parole eligibility hearing in October

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2020 despite being found unsuitable for parole eleven months earlier at his November 2019

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hearing, and argues he is entitled to immediate release because Proposition 57 converted

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his indeterminate life sentence to a determinate sentence of six years. However, he has not

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shown he would necessarily have been released on parole at a new hearing, as Proposition

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57 grants eligibility for parole consideration and success on his claim would not

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necessarily lead to release. Thus, even if Petitioner succeeded on his claims and this Court
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found him eligible for nonviolent parole consideration under Proposition 57, his claims

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would still fall outside the core of habeas corpus, as such an outcome “would not

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necessarily lead to his immediate or earlier release from confinement.” Id. Petitioner’s

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claims do not lie in the Court’s federal habeas subject matter jurisdiction and must be

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brought, if at all, in a civil rights action pursuant to 42 U.S.C. § 1983. Id. at 934–35.

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The Supreme Court has recognized that federal habeas petitions can be read to plead

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causes of action under the Civil Rights Acts for “deprivation of constitutional rights by

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prison officials.” Wilwording v. Swenson, 404 U.S. 249, 251 (1971), superseded by statute

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on other grounds as stated in Woodford v. Ngo, 548 U.S. 81, 84 (2006); Devereaux v.

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Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (noting that title 42 U.S.C. § 1983 “creates a

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private right of action against individuals who, acting under color of state law, violate

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federal constitutional or statutory rights.”) A district court may construe an incorrectly

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filed habeas petition as a 42 U.S.C. § 1983 action “[i]f the complaint is amenable to

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conversion on its face, meaning that it names the correct defendants and seeks the correct

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relief.” Nettles, 830 F.3d at 936. To do so, however, the Court must notify and obtain

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“informed consent from the prisoner” and “may recharacterize the petition so long as it

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warns the pro se litigant of the consequences of the conversion and provides an opportunity

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for the litigant to withdraw or amend his or her complaint.” Id.

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Here, the Court declines to convert Petitioner’s habeas Petition to a civil rights

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complaint, as doing so would expose Petitioner to the provisions of the Prisoner Litigation

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Reform Act (PLRA), “which installed a variety of measures ‘designed to filter out the bad

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claims [filed by prisoners] and facilitate consideration of the good.’” Bruce v. Samuels,

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577 U.S. 82, 85 (2016) (quoting Coleman v. Tollefson, 575 U.S. 532, 535 (2015)). For

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example, a civil rights complaint which is dismissed as malicious, frivolous, or for failure

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to state a claim would count as a “strike” under 28 U.S.C. § 1915(g), which is not true for

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habeas cases. Id. at 86. In addition, while the filing fee for a habeas petition is five dollars,

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which Petitioner paid in this case, a § 1983 action requires a civil filing fee of $405—

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comprising a $350 statutory and a $55 administrative fee—though the administrative fee
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does not apply to persons granted leave to proceed in forma pauperis (IFP). See 28 U.S.C.

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§ 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14

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(eff. Dec. 1, 2023)). The PLRA provides that the civil filing fee be collected even if the

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Petitioner qualifies to proceed in forma pauperis and must be paid regardless of whether

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the action is ultimately dismissed, which “also applies to costs awarded against prisoners

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when they are judgment losers.” Bruce, 577 U.S. at 85–86. A prisoner willing to pay a

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five-dollar filing fee might not want to proceed with a civil rights complaint for which at

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least $350 of the $405 filing fee would be deducted from his inmate account. Thus, the

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Court will not convert the habeas Petition into a civil rights complaint.

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Accordingly, Respondent’s motion to dismiss the Petition for lack of habeas
jurisdiction is granted.

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C.

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Finally, Respondent argues that the Petition is untimely. (ECF No. 9-1 at 11–12.)

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Petitioner argues the one-year statute of limitations does not apply to challenges to parole

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denials, only state court judgments. (ECF No. 11 at 14.)

Timeliness

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A one-year statute of limitations applies to petitions for writ of habeas corpus filed

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by a state prisoner who is challenging his state court conviction or sentence in federal court,

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and begins to run “from the latest of” the following:

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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;
(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.
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28 U.S.C. § 2244(d)(1).

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The Ninth Circuit has held that 28 U.S.C. § 2244(d)(1)(D) applies to claims

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challenging the decision of the California Parole Board to deny parole, and that the start

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date for the one-year limitations period is the day after administrative remedies are

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exhausted. Redd v. McGrath, 343 F.3d 1077, 1082 (9th Cir. 2003). Petitioner exhausted

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his administrative remedies on January 1, 2023, when the Parole Board denied his appeal

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of the decision to deny him a Proposition 57 parole hearing. (ECF No. 1-2 at 12.) The

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one-year statute of limitations began to run the next day, January 2, 2023. Redd, 343 F.3d

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at 1082. Absent tolling, the limitations period was set to expire on January 1, 2024. The

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instant Petition was constructively filed over six months later, on July 11, 2024, the day it

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was handed to prison authorities for mailing to the Court. (See ECF No. 1 at 26); Anthony

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v. Cambra, 236 F.3d 568, 574–75 (9th Cir. 2000). Thus, unless the limitations period was

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subject to adequate tolling, the Petition is untimely.

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1.

Statutory Tolling

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Under 28 U.S.C. § 2244(d)(2), “[t]he time during which a properly filed application

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for State post-conviction or other collateral review . . . is pending shall not be counted

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toward any period of limitation under this subsection.” After exhausting his administrative

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remedies on January 1, 2023, Petitioner filed a habeas petition in the San Diego Superior

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Court on March 8, 2023, raising the claims presented here. (ECF No. 10-7.) Thus, the

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365-day limitations period ran for 65 days from January 2, 2023, until it was statutorily

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tolled on March 8, 2023. The period remained tolled until April 4, 2023, when the State

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Superior Court denied the petition (ECF No. 10-8), leaving 300 days remaining on the one-

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year statute of limitations. Petitioner filed a habeas petition in the State Appellate Court

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raising the same claims on April 20, 2023. (ECF No. 10-2.) It was denied on April 26,

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2023, as “untimely” and because “[n]othing in Proposition 57 itself restricts the Board’s

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discretion in setting the next hearing date after an inmate is found unsuitable for parole.”

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(ECF No. 10-9 at 2.)

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“[A]n application is pending as long as the ordinary state collateral review process
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is ‘in continuance’—i.e., ‘until the completion of’ that process.” Carey v. Saffold, 536 U.S.

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214, 219–20 (2002). Tolling continues “during the interim between a writ being denied at

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one court level and a new petition being filed at the next higher court level as long as the

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petition at the next level is filed within a reasonable period of time.” Porter v. Ollison, 620

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F.3d 952, 958 (9th Cir. 2010). However, when a state court petition is found to be untimely,

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it is not “properly filed” as defined in 28 U.S.C. § 2244(d)(2) and is is not entitled to

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statutory tolling, either for the period it was pending or for the time between filings. Pace

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v. DiGuglielmo, 544 U.S. 408, 417 (2005). An untimely state habeas petition “must be

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treated as improperly filed, or as though it never existed, for purposes of section 2244(d).”

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Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011). Thus, because the Appellate Court

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denied the petition as untimely, Petitioner is not entitled to any statutory tolling for either

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the habeas petition filed in the Appellate Court or the gap between the Superior Court’s

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denial of the petition and the filing of the Appellate Court petition.

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Accordingly, the limitations period ran for an additional 35 days from the April 5,

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2023, denial of the State Superior Court petition until May 10, 2023, when Petitioner filed

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a State Supreme Court habeas petition and statutory tolling could have begun again. (ECF

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No. 10-10.) At that time 265 days remained on the limitations period. The State Supreme

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Court petition was summarily denied without a statement of reasons on August 9, 2023.

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(ECF No. 10-11.) The Court need not determine whether the limitations period was tolled

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while the State Supreme Court habeas petition was pending or during the gap between the

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State Appellate Court denial and the filing of the State Supreme Court petition. Even

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allowing for tolling during those periods, only 265 days remained when the limitations

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period began running again on August 10, 2023, the day after the State Supreme Court

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denied the petition, and it ran for 335 days until the instant federal Petition was

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constructively filed on July 11, 2024. Thus, even with the maximum statutory tolling

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available, the Petition was filed 70 days after the limitations period expired, and it is

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untimely unless equitable tolling applies.

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2.

Equitable Tolling

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The statute of limitations under AEDPA “is subject to equitable tolling in

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appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). “To be entitled to

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equitable tolling, [Petitioner] must show ‘(1) that he has been pursuing his rights diligently,

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and (2) that some extraordinary circumstance stood in his way’ and prevented timely

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filing.” Lawrence v. Florida, 549 U.S. 327, 336–37 (2007) (quoting Pace, 544 U.S. at

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418). Equitable tolling is “unavailable in most cases,” and “the threshold necessary to

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trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.”

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Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). A petitioner must show that the

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extraordinary circumstances caused his untimeliness. Spitsyn v. Moore, 345 F.3d 796, 799

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(9th Cir. 2003).

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Petitioner does not argue he is entitled to equitable tolling, nor does he identify any

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extraordinary circumstances explaining his delay in filing his federal Petition. Rather, he

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argues the Petition is timely because the one-year statute of limitations only applies to

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collateral attacks on state court judgments, not challenges to parole release. (ECF No. 11

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at 13–16.) As noted, the Ninth Circuit has determined that the one-year statute of

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limitations applies to challenges to state parole proceedings. See Redd, 343 F.3d at 1082.

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Accordingly, the Court grants Respondent’s motion to dismiss the Petition as

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untimely.

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III.

CONCLUSION

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For the foregoing reasons, the Court GRANTS the Motion to Dismiss (ECF No. 9)

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and DISMISSES the Petition for failure to present a claim within the Court’s subject

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matter habeas jurisdiction and as untimely.

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In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in

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the United States District Courts, “[t]he district court must issue or deny a certificate of

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appealability when it enters a final order adverse to the applicant.” “A certificate of

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appealability should issue if ‘reasonable jurists could debate whether’ (1) the district

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court’s assessment of the claim was debatable or wrong; or (2) the issue presented is
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‘adequate to deserve encouragement to proceed further.’” Shoemaker v. Taylor, 730 F.3d

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778, 790 (9th Cir. 2013) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, the

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Court concludes that Petitioner has not made the required showing and therefore DENIES

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a certificate of appealability.

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The Clerk of Court will enter a final judgment of dismissal and close the case.

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IT IS SO ORDERED.

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DATED: March 10, 2025

Hon. Cynthia Bashant, Chief Judge
United States District Court

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22
23
24
25
26
27
28
13

24cv1233