Lazinka v. Little et al

Filing 55

MEMORANDUM DECISION AND ORDER granting 31 Motion to Dismiss and dismissing 36 Amended Petition; denying 40 Motion to File Oversize Brief; denying 41 Motion for Extension of Time to File; denying 43 Motion to Take Leave for the Production of Discovery; granting 44 Motion for Extension of Time to File; granting 45 Supplemental Motion for Extension of Time; denying 51 Supplemental Motion to Expand the Record. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARK H. LAZINKA,
Case No. 1:16-cv-00114-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
STEVEN LITTLE and STATE OF
IDAHO,
Respondents.

Pending before the Court is an Amended Petition for Writ of Habeas Corpus (Dkt.
21-1, 36) filed by Petitioner Mark H. Lazinka (“Petitioner” or “Lazinka”), challenging
Petitioner’s Ada County convictions on three counts of vehicular manslaughter. (Dkt. 211, 36.) Respondent has filed a Motion for Summary Dismissal, arguing that all of the
claims in the Amended Petition are barred by the one-year statute of limitations, that
most of the claims are procedurally defaulted, and that two of the claims are
noncognizable. (Dkt. 31.) Also pending are Petitioner’s Motion to Take Leave for the

MEMORANDUM DECISION AND ORDER - 1

Production of Discovery (Dkt. 43) and Petitioner’s Supplemental Motion to Expand the
Record (Dkt. 51). These motions are all ripe for adjudication.
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by Respondent. (Dkt. 26.) See Fed. R. Evid.
201(b); Dawson v Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).
Having carefully reviewed the record, including the state court record, the Court
finds that the parties have adequately presented the facts and legal arguments in the briefs
and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order denying Petitioner’s motions for
discovery and for expansion of the record, granting Respondent’s Motion for Summary
Dismissal, and dismissing this case with prejudice as untimely.
BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
State v. Lazinka, Docket No. 34884, Op. 311 (Idaho Ct. App. Jan. 8, 2009) (per curiam)
(unpublished), which is contained in the record at State’s Lodging B-4:
Lazinka was driving on a state highway with a blood
alcohol content of .15, nearly twice the legal limit. When the
driver of a Mustang, Cammon Hall, tried to pass him, Lazinka
cut him off. Lazinka and Hall thereafter engaged in a race,
sometimes speeding at approximately 100 miles per hour. At
an intersection, Tony Perfect, driving a vehicle also occupied
by his wife and their five-week-old daughter, attempted to
make a left turn onto the highway where Lazinka and Hall
were racing. Hall narrowly missed the Perfects’ vehicle, but
Lazinka hit them at a high rate of speed, killing all three
members of the family.

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The State charged Lazinka with three counts of
vehicular manslaughter, I.C. § 18–4006(3). Initially, Hall was
likewise charged with three counts of vehicular manslaughter
as well as leaving the scene of an injury accident, I.C. § 18–
8007, and reckless driving, I.C. § 49–1401. After receiving an
accident reconstruction report from the State Police, however,
the State dismissed the vehicular manslaughter charges
against Hall on the belief that the State could not prove those
charges beyond a reasonable doubt.
(State’s Lodging B-4 at 1-2.)
Petitioner pleaded guilty to all three counts of vehicular manslaughter. (Id. at 2.)
He was sentenced to consecutive terms of ten years in prison with four years fixed, for a
total of thirty years in prison with twelve years fixed. (Id.) The judgment of conviction
was entered on April 11, 2006. (State’s Lodging A-1 at 95-96.) Petitioner did not timely
file a direct appeal, which should have been filed by May 23, 2006, forty-two days after
final judgment was entered. See Idaho Appellate Rule 14.
Nearly a year later, on May 21, 2007, Petitioner filed a petition for state postconviction relief, asserting ineffective assistance of counsel on various grounds. (State’s
Lodging C-1 at 4-9.) The state agreed that Petitioner was deprived of the effective
assistance of counsel based on the failure of Petitioner’s counsel to file an appeal, and
Petitioner was permitted to pursue a direct appeal, while his state post-conviction petition
remained pending. (State’s Lodging D-4 at 2.)
On direct appeal, the Idaho Court of Appeals affirmed Petitioners’ convictions and
sentences on January 8, 2009. Petitioner did not file a petition for review with the Idaho

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Supreme Court, and the court of appeals issued its remittitur on January 30, 2009.
(State’s Lodging B-5.)
After Petitioner’s direct appeal was completed, the trial court dismissed the
remainder of Petitioner’s post-conviction petition. (State’s Lodging C-1 at 40-44.) The
Idaho Court of Appeals affirmed that dismissal. (State’s Lodging D-4.) The Idaho
Supreme Court denied review on March 31, 2011, and the remittitur issued the same day.
(State’s Lodging D-10; D-11.)
Petitioner filed his initial Petition (Dkt. 3) in this Court, at the earliest, on March
15, 2016. See Rule 3(d) of the Rules Governing Section 2254 Cases (“Habeas Rules”);
See Houston v. Lack, 487 U.S. 266, 270-72 (1988) (holding that, if a prisoner is entitled
to the benefit of the mailbox rule, a legal document is deemed filed on the date the
prisoner delivers it to the prison authorities for filing by mail, rather than the date it is
actually received by the clerk of court). Petitioner later filed the Amended Petition.
In the instant federal habeas corpus petition, Petitioner asserts the following
claims: (1) “manifest injustice”; (2) “illegal nonconsensual warrentless [sic] blood draw”;
(3) ineffective assistance of counsel, including thirty-three sub-claims; (4) “sufficiency of
the evidence”; (5) “involuntary and unintelligently made plea”; (6) prosecutorial
misconduct; (7) judicial bias; (8) “arbitrary and capricious actions”; (9) “excessive
sentence”; (10) improper denial of an evidentiary hearing in Petitioner’s post-conviction
proceedings; and (11) incompetency to stand trial. (Am. Pet., Dkt. 21-1 & 36.)

MEMORANDUM DECISION AND ORDER - 4

PRELIMINARY MOTIONS
Petitioner has filed a motion for discovery and a supplemental motion to expand
the record. (Dkt. 43, 51.) Habeas petitioners, unlike traditional civil litigants, are not
entitled to discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997).
Although the Supreme Court has held that a federal court may not consider evidence of a
habeas claim unless that evidence was presented to the state court, Cullen v. Pinholster,
563 U.S. 170, 181 (2011), “that prohibition applies only to claims previously adjudicated
on the merits in State Court proceedings,” Dickens v. Ryan, 740 F.3d 1302, 1320 (9th Cir.
2014) (en banc) (internal quotation marks omitted). Pinholster does not apply to
situations where a petitioner seeks to establish an excuse for procedural default or for
noncompliance with the statute of limitation. However, a petitioner still must show good
cause to be entitled to discovery on such issues. See Habeas Rule 6(a).
Good cause exists when there is “reason to believe that the petitioner may, if the
facts are fully developed, be able to demonstrate that he is entitled to relief.” Bracy, 520
U.S. at 908-09 (internal quotation marks and alteration omitted). To show good cause, a
request for discovery must be supported by specific factual allegations. Habeas corpus
review “was never meant to be a fishing expedition for habeas petitioners to explore their
case in search of its existence.” Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999)
(internal quotation marks omitted). If good cause is shown, the extent and scope of
discovery is within the court’s discretion. See Habeas Rule 6(a).

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Habeas Rule 7 gives a federal court the authority to expand the existing state court
record with “materials relating to the petition.” One of the purposes of Rule 7 is to permit
the court to dispose of habeas petitions without the time and expense of conducting an
evidentiary hearing. See Advisory Committee Note, Habeas Rule 7.
Petitioner has not established good cause why the Court should allow discovery in
this case, nor has he shown that an expanded record is necessary for the Court to
determine whether his claims are subject to summary dismissal. For the reasons set forth
below, it is clear from the current record that Petitioner’s claims are untimely. Additional
evidence is unnecessary. Therefore, Petitioner’s motions for discovery and to expand the
record will be denied.
RESPONDENT’S MOTION FOR SUMMARY DISMISSAL
Habeas Rule 4 authorizes the Court to summarily dismiss a petition for writ of
habeas corpus when “it plainly appears from the face of the petition and any attached
exhibits,” as well as those records subject to judicial notice, “that the petitioner is not
entitled to relief in the district court.” Where appropriate, a respondent may file a motion
for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir.
1989).
Respondent argues that Petitioner’s claims are barred by the one-year statute of
limitations. The Court agrees. Even with statutory tolling, the initial Petition was filed
nearly four years too late. Because Petitioner is not entitled to equitable tolling and has
not made a colorable showing of actual innocence, the Court will dismiss the Amended

MEMORANDUM DECISION AND ORDER - 6

Petition with prejudice as untimely. The Court need not address Respondent’s other
arguments for dismissal.
1.

Standards of Law
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Petitioner

was required to seek federal habeas corpus relief within one year from “the date on which
the judgment became final by the conclusion of direct review or the expiration of the time
for seeking such review.”1 28 U.S.C. § 2244(d)(1)(A). One year in this context actually
means 366 days, for example, from January 1, 2010, to January 1, 2011. See Patterson v.
Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying Federal Rule of Civil Procedure
6(a) to AEDPA, where the calculation excludes the day the conviction became final).
Thus, the first step in a statute of limitations analysis is determining the date on which the
petitioner’s conviction became final.

1

Several other triggering events for the statute of limitations exist—but are less common—and are
set forth in subsections 2244(d)(1)(B)-(D):
(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.
28 U.S.C. § 2244(d)(1). Though Petitioner asserts that these three triggering events also existed in his
case (Dkt. 33-1 at 14), the Court disagrees and will calculate the statute of limitations from the date
referenced in § 2244(d)(1)(A).

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Under 28 U.S.C. § 2244(d)(1)(A), the date of “finality” that begins the one-year
time period is marked as follows, depending on how far a petitioner pursues his case:
Action Taken

Finality Occurs

No direct appeal is filed after state district court order or
judgment

42 days later, see
Idaho Appellate
Rule 14

Appeal is filed and Idaho Court of Appeals issues a
decision, but no petition for review is filed with the Idaho
Supreme Court

21 days later, see
Idaho Appellate
Rule 118

Appeal is filed and Idaho Supreme Court issues a decision
or denies a petition for review of an Idaho Court of Appeals
decision, and Petitioner does not file a petition for writ of
certiorari with the United States Supreme Court

90 days later, see
United States
Supreme Court
Rule 13

After Idaho Supreme Court issues a decision or denies a
petition for review, Petitioner files a petition for writ of
certiorari to the United States Supreme Court, and the
petition is denied

Date of denial

After Idaho Supreme Court issues a decision or denies a
petition for review, Petitioner files a petition for writ of
certiorari to the United States Supreme Court, the petition is
granted, and the United States Supreme Court issues a
decision

Date of decision

In each of the above instances, if the petitioner stops pursuing the case and does
not take the next step within the time specified, “finality” is measured from entry of the
final judgment or order, not from a remittitur or mandate, which are mere formalities.
Gonzales v. Thaler, 565 U.S. 134, 150-51 (2012); Clay v. United States, 537 U.S. 522,
529 (2003); Wixom v. Washington, 264 F.3d 894, 898 n.4 (9th Cir. 2001).

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The one-year statute of limitations can be tolled (or suspended) under certain
circumstances. AEDPA provides for tolling for all of “[t]he time during which a properly
filed application for State post-conviction or other collateral review . . . is pending.” 28
U.S.C. § 2244(d)(2). Thus, to the extent that a petitioner properly filed an application for
postconviction relief or other collateral challenge in state court, the one-year federal
limitations period stops running on the filing date of the state court action and resumes
when the action is completed. To warrant tolling, the collateral relief application must be
“properly filed,” meaning that it conforms to state rules governing conditions to filing,
including filing deadlines. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005).
The time before a petitioner files an initial application for collateral review in state
court does not toll the statute of limitation. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.
1999) (“AEDPA’s statute of limitations is not tolled from the time a final decision is
issued on direct state appeal and the time the first state collateral challenge is filed
because there is no case ‘pending’ during that interval.”), abrogated on other grounds as
stated in Nedds v. Calderon, 678 F.3d 777, 781 (9th Cir. 2012). Although AEDPA
generally “does not permit the reinitiation of the [federal] limitations period that has
ended before the state petition was filed,” Ferguson v. Palmateer, 321 F.3d 820, 822 (9th
Cir. 2003), the United States Supreme Court has established an exception for cases in
which the state court grants the petitioner the right to file an out-of-time direct appeal—in
that case, the federal habeas statute of limitations begins to run again from the new date
of finality, Jimenez v. Quarterman, 555 U.S. 113, 121 (2009).

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If, after applying statutory tolling, a habeas petition is deemed untimely, a federal
court can still hear the merits of the claims if the petitioner can establish that equitable
tolling should be applied to toll the remaining time period. See Jorss v. Gomez, 311 F.3d
1189, 1192 (9th Cir. 2002) (“[A] court must first determine whether a petition was
untimely under the statute itself before it considers whether equitable tolling should be
applied.”). The limitations period may be equitably tolled under exceptional
circumstances. “[A] petitioner is entitled to equitable tolling only if he shows (1) that he
has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649
(2010) (internal quotation marks omitted). A petitioner requesting equitable tolling must
show “reasonable diligence, not maximum feasible diligence,” id. at 653 (internal
quotation marks and citations omitted), and “whether a petitioner acted with reasonable
diligence is a fact-specific inquiry,” Fue v. Biter, 842 F.3d 650, 654 (9th Cir. 2016).
In addition, the statute of limitations is subject to an actual innocence exception. A
petitioner who satisfies this actual innocence gateway standard may have his otherwise
time-barred claims heard on the merits. McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-32
(2013); Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc). Actual innocence in
this context means “factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 624 (1998). Although “habeas petitioners who assert convincing
actual-innocence claims [need not] prove diligence to cross a federal court’s threshold,” a
court “‘may consider how the timing of the submission and the likely credibility of a

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petitioner’s affiants bear on the probable reliability of evidence of actual innocence.’”
McQuiggin, 133 S. Ct. at 1935 (quoting Schlup v. Delo, 513 U.S. 298, 332 (1995)
(alterations omitted).
2.

The Petition Is Barred by the Statute of Limitations
A.

Date of Finality and Statutory Tolling

Petitioner’s conviction became final, at the latest, when the Idaho Court of
Appeals decided his belated direct appeal in 2009. See Jimenez, 555 U.S. at 121
(“[W]here a state court grants a criminal defendant the right to file an out-of-time direct
appeal during state collateral review, but before the defendant has first sought federal
habeas relief, his judgment is not yet ‘final’ for purposes of § 2244(d)(1)(A).”). Because
Petitioner did not file a petition for review with the Idaho Supreme Court in that appeal,
his convictions became final on January 29, 2009, when Idaho’s 21-day period for filing
a petition for review expired. See Idaho Appellate Rule 118; Gonzales, 132 S. Ct. at 653.
Petitioner’s post-conviction petition was already pending at that time. Therefore,
Petitioner is entitled to statutory tolling from January 29, 2009, through the conclusion of
his state post-conviction proceedings. 28 U.S.C. § 2244(d)(2).
To determine the date when Petitioner’s state court post-conviction action
concluded, the Court looks to state law. Allen v. Lewis, 295 F.3d 1046, 1046 (9th Cir.
2002) (en banc) (reaffirming Bunney v. Mitchell, 262 F.3d 973 (9th Cir. 2001) (per
curiam), superseded by Cal. Rule of Court 8.532(b)(2)(C)) as stated in Korolev v. Horel,
386 F. App’x 594 (9th Cir. July 2, 2010) (unpublished)). In Idaho, decisions of the Idaho

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Supreme Court are final when the remittitur is issued—in Petitioner’s post-conviction
case, on March 31, 2011. See Jakoski v. State, 32 P.3d 672, 679 (Idaho Ct. App. 2001).
The 90-day certiorari period is not tolled following the last state court decision on
a petitioner’s state postconviction petition or other application for collateral relief.
Lawrence v. Florida, 549 U.S. 327, 331 (2007) (“State review ends when the state courts
have finally resolved an application for state postconviction relief. After the State’s
highest court has issued its mandate or denied review, no other state avenues for relief
remain open. And an application for state postconviction review no longer exists. All that
remains is a separate certiorari petition pending before a federal court. The application
for state postconviction review is therefore not ‘pending’ after the state court's
postconviction review is complete, and § 2244(d)(2) does not toll the 1-year limitations
period during the pendency of a petition for certiorari.”). Therefore, the statute of
limitation in Petitioner’s case was statutorily tolled until March 31, 2011, the day the
remittitur issued in his post-conviction appeal.
Petitioner’s federal habeas corpus petition was due to be filed within one year—by
March 31, 2012. Because Petitioner did not file his initial Petition in this Court until
March 15, 2016, absent equitable tolling, the Petition was nearly four years too late.
B.

Equitable Tolling

As noted above, equitable tolling will apply if (1) the petitioner has pursued his
rights diligently and (2) extraordinary circumstances stood in his way and prevented a
timely filing. Holland, 560 U.S. at 649. “[T]he threshold necessary to trigger equitable

MEMORANDUM DECISION AND ORDER - 12

tolling under AEDPA is very high, lest the exceptions swallow the rule.” Miranda v.
Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal quotation marks and alteration
omitted). As to the diligence issue, the Supreme Court has held that a petitioner who
“waited years, without any valid justification” to bring his post-conviction claims in state
court, and then waited “five more months after his [post-conviction] proceedings became
final before deciding to seek relief in federal court,” had not acted diligently in pursuing
his rights. Pace, 544 U.S. at 419.
Petitioner first asserts that his post-conviction counsel rendered ineffective
assistance and that this constitutes “cause and prejudice.” Therefore, contends Petitioner,
his untimely filing should be excused. (Pet.’s Opp. Brief, Dkt. 33-1, at 14-15; see also
Pet.’s Suppl. Brief, Dkt. 49-1, at 11.) However, the rule that ineffective assistance of
post-conviction counsel can, in limited circumstances, constitute cause to excuse a
petitioner’s procedural default, see Martinez v. Ryan, 132 S. Ct. 1309 (2012), does not
apply to claims barred by the statute of limitations. See Lambrix v. Sec. of Fla. Dep’t of
Corrs., 756 F.3d 1246, 1249 (11th Cir. 2014) (“[T]he equitable rule in Martinez applies
only to the issue of cause to excuse the procedural default of an ineffective assistance of
trial counsel claim that occurred in a state collateral proceeding and has no application to
the operation or tolling of the § 2244(d) statute of limitations for filing a § 2254
petition.”) (internal quotation marks omitted); Avila v. Reinke, Case No. 1:11-cv-00474EJL, 2014 WL 4162385, at *8 (D. Idaho Aug. 20, 2014) (unpublished) (stating that

MEMORANDUM DECISION AND ORDER - 13

Martinez v. Ryan “applies only to a procedural default defense, not to a statute of
limitations defense”).
Rather, the actions (or inaction) of post-conviction or habeas counsel can only be
used to justify equitable tolling if it constitutes an extraordinary circumstance under
Holland, 560 U.S. at 649. For example, in Holland, the petitioner had contacted his
habeas counsel on multiple occasions and “repeatedly emphasized the importance” of
filing his federal petition on time. Id. at 652. The petitioner’s attorney failed even to
inform the petitioner that the state supreme court had decided his case—“again despite
[the petitioner’s] many pleas for that information”—and “failed to communicate with his
client over a period of years.” Id. These circumstances led the Supreme Court to conclude
that the petitioner in Holland might be entitled to equitable tolling. Id. at 653-54.
Petitioner has not established extraordinary circumstances that would justify the
application of equitable tolling in this case. He offers no specifics to support his argument
that the failure of his attorneys to make certain arguments at various stages of the
proceedings somehow stood in his way and prevented a timely federal filing. (Dkt. 33-1
at 17-18.) Further, Petitioner has not shown that he exercised reasonable diligence in
pursuing his case. Therefore, equitable tolling is inappropriate.
C.

Actual Innocence

Because Petitioner is not entitled to equitable tolling, the Court may hear his
habeas claims only if he can establish actual innocence. To take advantage of the actual
innocence gateway exception to the statute of limitations, a petitioner must demonstrate

MEMORANDUM DECISION AND ORDER - 14

“that it is more likely than not that no reasonable juror would have found [the] petitioner
guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327. Stated another way, a
petitioner must show that every reasonable juror would vote to acquit. In making this
showing, a petitioner must “support his allegations of constitutional error with new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.” Id. at 324.
The miscarriage of justice exception is an extremely demanding standard that
“permits review only in the ‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538
(2006). A court considering whether a petitioner has established actual innocence must
consider “all the evidence, old and new, incriminating and exculpatory, admissible at trial
or not.” Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011) (en banc) (internal quotation
marks omitted). The actual innocence analysis “does not turn on discrete findings
regarding disputed points of fact, and ‘[i]t is not the district court’s independent judgment
as to whether reasonable doubt exists that the standard addresses.’” House v. Bell, 547
U.S. 518, 539-40 (2006) (quoting Schlup, 513 U.S. at 329 (alteration in original)). Rather,
the court must “make a probabilistic determination about what reasonable, properly
instructed jurors would do.” Schlup, 513 U.S. at 329.
Petitioner has not met this exceptionally strict standard. Indeed, he has not
submitted any convincing evidence of innocence at all. His self-serving statements are
insufficient. Therefore, McQuiggen’s actual-innocence exception does not apply to
excuse Petitioner’s failure to file his Petition on time.

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CONCLUSION
For the foregoing reasons, the Amended Petition will be dismissed with prejudice
as untimely.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion to File Oversize Reply Brief (Dkt. 40) is GRANTED.

2.

Respondent’s Motion for Extension of Time to File Response to
Petitioner’s Motion to Expand the Record (Dkt. 41) is GRANTED.

3.

Petitioner’s Motion to Take Leave for the Production of Discovery (Dkt.
43) is DENIED.

4.

Petitioner’s Motion for Extension of Time to File Supplemental Motion in
Opposition to Respondent’s Motion for Summary Dismissal (Dkt. 44) is
GRANTED.

5.

Petitioner’s Supplemental Motion for Extension of Time (Dkt. 45) is
GRANTED.

6.

Petitioner’s Supplemental Motion to Expand the Record (Dkt. 51) is
DENIED.

7.

Respondent’s Motion for Summary Dismissal (Dkt. 31) is GRANTED, and
the Amended Petition is DISMISSED with prejudice.

8.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.

MEMORANDUM DECISION AND ORDER - 16

§ 2253(c); Habeas Rule 11. If Petitioner wishes to appeal, he must file a
timely notice of appeal with the Clerk of Court. Petitioner may seek a
certificate of appealability from the Ninth Circuit by filing a request in that
court.

DATED: May 10, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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