May v. Yordy

Filing 17

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Respondent's Motion to Dismiss 12 is GRANTED. The Petition is dismissed with prejudice. 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 Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARKCUS RAYMOND MAY,
Petitioner,
v.

Case No. 1:16-cv-00278-CWD
MEMORANDUM DECISION AND
ORDER

KEITH YORDY,
Respondent.

Petitioner Markcus Raymond May is proceeding on his Petition for Writ of
Habeas Corpus. (Dkt. 3.) Respondent has filed a Motion for Summary Dismissal on
procedural grounds. (Dkt. 12.) The Motion is now fully briefed (Dkts. 14, 15), and all
parties who have appeared have consented to the jurisdiction of a United States
Magistrate Judge to enter final orders in this case. (Dkt. 10.) See 28 U.S.C. § 636(c) and
Fed. R. Civ. P. 73.
Having reviewed the record in this matter and having considered the arguments of
the parties, the Court enters the following Order.

MEMORANDUM DECISION AND ORDER - 1

REVIEW OF MOTION FOR SUMMARY DISMISSAL:
STATUTE OF LIMITATIONS GROUNDS
Standard of Law Governing Statute of Limitations
When a petitioner’s compliance with threshold procedural requirements is at issue,
a respondent may file a motion for summary dismissal, rather than an answer. White v.
Lewis, 874 F.2d 599, 602 (9th Cir. 1989). Rule 4 of the Rules Governing § 2254 Cases
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 that the petitioner
is not entitled to relief in the district court.” The Court takes judicial notice of the records
from Petitioner’s state court proceedings, which have been lodged by the parties. See Fed.
R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
The Antiterrorism and Effective Death Penalty Act (AEDPA) requires a petitioner
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 means 366 days, for
example, from January 1, 2000, to January 1, 2001. See Patterson v. Stewart, 251 F.3d
1243, 1246 (9th Cir. 2001) (applying Federal Rule of Civil Procedure 6(a) to AEDPA).

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).

MEMORANDUM DECISION AND ORDER - 2

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 claim:
Action Taken

Finality Occurs

No 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 instance above, “finality” is measured from entry of the final judgment or
order, not from a remittitur or mandate, which are mere formalities. Gonzales v. Thaler,
MEMORANDUM DECISION AND ORDER - 3

132 S.Ct. 641, 653 (2012); Clay v. United States, 537 U.S. 522, 529 (2003); Wixom v.
Washington, 264 F.3d 894, 898 n.4 (9th Cir. 2001).
AEDPA also contains a tolling provision that stops or suspends the one-year
limitations period from running during the time in “which a properly filed application for
State postconviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2).
The federal statute of limitations is not tolled between the date of finality on direct appeal
and the date the first collateral challenge is filed, because nothing is “pending” during
that time. Thorson v. Palmer, 479 F.3d 643, 646 (9th Cir. 2007).
To warrant tolling, the collateral relief application must be “properly filed,”
meaning that it conforms to state rules governing conditions to filing, including
timeliness. Pace v. DiGuglielmo, 544 U.S. 408 (2005). A state collateral relief application
is considered “pending” under § 2244(d)(2) until “the application has achieved final
resolution through the State’s post-conviction procedures.” Carey v. Saffold, 536 U.S.
214, 220 (2002). Whether an application remains “pending” under § 2244(d)(2) depends
on the state’s interpretation of finality. See id. at 223 (“Ordinarily, for purposes of
applying a federal statute that interacts with state procedural rules, we look to how a state
procedure functions, rather than the particular name that it bears”); White v. Klitzkie, 281
F.3d 920, 924 n.4 (9th Cir. 2002) (it is the state appellate court decision, not the mandate,
that signals conclusion of review for § 2244(d)(2) purposes, unless the state has a rule
that extends the time when the decision of the state appellate court becomes final).

MEMORANDUM DECISION AND ORDER - 4

In Idaho, an appellate case remains pending until a remittitur is issued. See
Cochran v. State, 984 P.2d 128, 129 (Idaho Ct. App. 1999), and so, for federal purposes,
a collateral relief application is deemed “pending” through the date of the remittitur. See
Jefferson v. Budge, 419 F.3d 1013, 1015 n.2 (9th Cir. 2005). “Pending” does not include
the time period for filing a petition for writ of certiorari before the United States Supreme
Court to challenge denial of a collateral review petition. Lawrence v. Florida, 549 U.S.
327, 337 (2007). Finally, each time statutory tolling ends, the statute of limitations does
not restart at one year, but begins running at the place where it stopped before the postconviction action was filed.
Background and Discussion of Timeliness
The Idaho Supreme Court denied Petitioner’s petition for review on direct appeal
on August 15, 2012. Petitioner’s judgment became final 90 days thereafter, on Tuesday,
November 13, 2012. Petitioner’s one-year federal statute of limitations began running on
that day, and continued for 125 days, until Petitioner filed a pro se petition for postconviction relief on March 18, 2013.2 His judgment of conviction and sentences were
affirmed by the Idaho Court of Appeals. Petitioner filed a petition for review, which was
denied by the Idaho Supreme Court on May 7, 2015, with the remittitur issuing the same
day.

In the analysis section of his Memorandum, Respondent incorrectly asserts that the pro se petition
was filed on May 18, 2013, but the clerk of court stamp shows a filing date of March 25, 2013, with a
signature date of March 18, 2013 (mailbox rule). Respondent’s background section, however, correctly
notes the date of the filing was March 18, 2013.

2

MEMORANDUM DECISION AND ORDER - 5

Petitioner’s federal statute began running again on May 8, 2015, with 241 days
left. It expired on Monday, January 4, 2016. Petitioner filed the Petition in this federal
habeas corpus action on June 16, 2016, more than five months too late.
Equitable Tolling
If a petition is deemed untimely, a federal court can hear the claims if the
petitioner can establish that “equitable tolling” should be applied. In Pace v.
DiGuglielmo, the Supreme Court clarified that, “[g]enerally, a litigant seeking equitable
tolling bears the burden of establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstances stood in his way.” 544
U.S. at 418. In addition, there must be a causal link between the lateness and the
extraordinary circumstances. See Bryant v. Schriro, 499 F.3d 1056, 1061 (9th Cir. 2007)
(holding that a petitioner must show that his untimeliness was caused by an external
impediment and not by his own lack of diligence). The petitioner bears the burden of
bringing forward facts to establish a basis for equitable tolling. United States v. Marolf,
173 F.3d 1213, 1318, n. 3 (9th Cir. 1999).
Petitioner alleges that he was assaulted by another inmate and sent to the Idaho
Maximum Security Institution in September 2015. He alleges that his legal work was lost
and that the paralegal failed to respond to his request for information. He states: “When I
finally got out of max and talked to paralegal she said I was to[o] late but then a friend

MEMORANDUM DECISION AND ORDER - 6

told me to file anyways because when my legal work was lost my time was s[tayed] so I
am not late.” (Dkt. 14, p. 3.)
By September 1, 2015, Petitioner had used a total of 241 days of his 366-day
federal statute of limitations, with 125 days remaining. Petitioner has not stated how long
he was in the maximum security prison, nor has he shown that he used the prison
grievance system to obtain his legal files or report that he had not been able to contact the
the prison paralegal.
On this record, the Court finds that Petitioner has not made any showing that he
exercised diligence to resolve his lost file issue or lack of access to the prison paralegal or
file his federal petition during the remaining 125 days. Petitioner cannot properly blame
an external source, the IDOC, for blocking his ability to file a federal petition when
Petitioner has not shown that the IDOC was made aware of his lost file or lack of access
to a paralegal while in the maximum security unit.
In addition, Petitioner was provided with the standard of law for a showing of
equitable tolling in Respondent’s Memorandum in support of the Motion for Summary
Dismissal. (Dkt. 12-1.) Therefore, Petitioner was put on notice that he was required to
show he exercised reasonable diligence to file his federal petition in time. His entirely
vague assertion that his file was lost and he could not contact the paralegal during the last
one-third of the one-year period is insufficient. The Court concludes that Petitioner is not
entitled to equitable tolling.

MEMORANDUM DECISION AND ORDER - 7

Actual Innocence
The United States Supreme Court has determined that there is an “actual
innocence” exception to the AEDPA statute of limitations, and that the exception applies
where a petitioner meets the rigorous actual innocence standard of Schlup v. Delo, 513
U.S. 298 (1995). McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). “‘Actual innocence
means factual innocence, and not mere legal insufficiency.’” Marrero v. Ives, 682 F.3d
1190 (9th Cir. 2012) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)).
To make a showing of actual innocence under Schlup, a Petitioner must present
new evidence showing that “‘it is more likely than not that no reasonable juror would
have convicted [the petitioner].’” Perkins, 133 S.Ct. at 1933 (quoting Schlup, 513 U.S. at
329). This exception is to be applied only in the “extraordinary” or “extremely rare” case.
House v. Bell, 547 U.S. 518, 538 (2006); Schlup, 513 U.S. at 320-21.
Petitioner alleges that he is innocent, even though he pleaded guilty to the
offense.3 As supporting evidence, he asserts:
I did not aim at anyone and that fact I was 6 to 8 feet from Lambert [the
victim] and by his testimony I pointed gun at his chest and he saws shells
coming out of gun, but say he was hit in the leg. I think this fact proves I
didn’t aim at him. Also the neighbor testified that she “saw me aim wildly.”
(Dkt. 14, pp. 2-3 (verbatim).)

There is no binding precedent showing that the actual innocence exception cannot be applied
where a petitioner has pleaded guilty; however, the United States Court of Appeals for the Ninth Circuit
has noted that it is “aware of a potential incongruity between the purpose of the actual innocence gateway
. . . and its application to cases involving guilty (or no contest) pleas.” Smith v. Baldwin, 510 F.3d 1127,
1140 n.9 (9th Cir. 2007). The Court declines Respondent’s invitation to break new ground here.
3

MEMORANDUM DECISION AND ORDER - 8

However, at the change-of-plea hearing, Petitioner admitted, “I fired a firearm,
and James Lambert got hit in the leg.” (State’s Lodging A-4, p. 20.) The trial court found
that admission sufficient to form the basis for the guilty plea to the aggravated battery
charge. (Id., p. 22.) At the preliminary hearing, Lambert and the two friends who stood
beside him as Petitioner fired the shots testified that Petitioner did, in fact, approach
Lambert, say that he had been waiting or looking for Lambert, and then fired shots at
Lambert. (State’s Lodging A-3.) Another witness testified that Petitioner was angry at
Lambert for dating Petitioner’s ex-girlfriend, and that she saw Petitioner—wielding a gun
and a crow bar—chase Lambert into the ex-girlfriend’s house and then saw Petitioner
break the window with the gun to enter the house. (Id.)
At the post-conviction relief hearing, Petitioner testified that Lambert and his two
friends were standing in the middle of the street talking, but that they did not ry to block
his car and stop him. He testified that it was his own decision to get out of the car to find
out who “Jimmy” was, his ex-girlfriend’s new boyfriend. He testified that his intent was
to beat up, smash, or attack Jimmy, and that later, his intent was to fire his gun, but not to
harm anyone. (State’s Lodging C-3.)
Contrarily, in Petitioner’s brief before the Idaho Supreme Court in the postconviction appeal, Petitioner wrote that the “so called vi[c]tims and state[’] s witnesses . .
. in fact blocked the road with their bodies preventing [Petitioner] from driving thru,
stopping him with the inte[]nt on doing harmed.” (State’s Lodging D-6, p. 6 (verbatim).)

MEMORANDUM DECISION AND ORDER - 9

Petitioner also characterized himself as “being detained by the assailants and fearing for
his safety.” (Id.)
Neither here, nor in the state court record, has Petitioner brought forward any
evidence corroborating these alternative stories in the face of three witnesses
corroborating the victim’s story. In any event, Petitioner offers no new evidence here that
was not available at the time he pleaded guilty. Petitioner simply denies that he aimed at
the victim, but he does not deny that he held a pistol in his hand, that the pistol
discharged, and that the victim was hit in the leg. That is enough to support the
aggravated battery charge. See State v. Billings, 54 P.3d 470, 471 (Idaho Ct. App. 2002)
(though the defendant fired two shotgun shots into the ground next to the victim’s feet,
intending only to scare them, but some of the pellets ricocheted and struck the victim’s
body, the “intent” element of aggravated battery was satisfied, because “[c]riminal intent
may be inferred from the defendant’s actions and surrounding circumstances.” Therefore,
the Court rejects Petitioner’s actual innocence argument as an exception to the statute of
limitations bar.

MEMORANDUM DECISION AND ORDER - 10

REVIEW OF MOTION FOR SUMMARY DISMISSAL:
PROCEDURAL DEFAULT GROUNDS
Exhaustion of State Court Remedies
Habeas corpus law requires that a petitioner “exhaust” his state court remedies
before pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a
claim, a habeas petitioner must fairly present it as a federal claim to the highest state
court for review in the manner prescribed by state law. See O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999). Unless a petitioner has exhausted his state court remedies relative
to a particular claim, a federal district court cannot grant relief on that claim, although it
does have the discretion to deny the claim. 28 U.S.C. § 2254(b)(2).
State remedies are considered technically exhausted, but not properly exhausted, if
a petitioner failed to pursue a federal claim in state court and there are no remedies now
available. O’Sullivan, 526 U.S. at 848. A claim may also be considered exhausted,
though not properly exhausted, if a petitioner pursued a federal claim in state court, but
the state court rejected the claim on an independent and adequate state law procedural
ground. Coleman v. Thompson, 501 U.S. 722, 731-732 (1991). Under these
circumstances, the claim is considered “procedurally defaulted.” Id. at 731. A
procedurally defaulted claim will not be heard in federal court unless the petitioner shows
either that there was legitimate cause for the default and that prejudice resulted from the
default, or, alternatively, that the petitioner is actually innocent and a miscarriage of
justice would occur if the federal claim is not heard. Id.

MEMORANDUM DECISION AND ORDER - 11

To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
that some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Murray v. Carrier, 477 U.S. 478, 488
(1986). To show “prejudice,” a petitioner bears “the burden of showing not merely that
the errors [in his proceeding] constituted a possibility of prejudice, but that they worked
to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of
constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
An attorney’s errors that rise to the level of a violation of the Sixth Amendment
right to effective assistance of counsel may, under certain circumstances, serve as a cause
to excuse the procedural default of other claims. Murray v. Carrier, 477 U.S. at 488.
However, an allegation of ineffective assistance of counsel will serve as cause to excuse
the default of other claims only if the ineffective assistance of counsel claim itself is not
procedurally defaulted or, if defaulted, Petitioner can show cause and prejudice for the
default. Edwards v. Carpenter, 529 U.S. 446, 454 (2000). In other words, before a federal
court can consider ineffective assistance of counsel as cause to excuse the default of
underlying habeas claims, a petitioner generally must have presented the ineffective
assistance of counsel claim in a procedurally proper manner to the state courts, such as in
a post-conviction relief petition, including through the level of the Idaho Supreme Court.
As to a related but different topic–errors of counsel made on post-conviction
review that cause the default of other claims–the general rule on procedural default is that

MEMORANDUM DECISION AND ORDER - 12

any errors of a defense attorney during a post-conviction action cannot serve as a basis
for cause to excuse a petitioner’s procedural default of his claims. See Coleman, 501 U.S.
at 752. This rule arises from the principle that a petitioner does not have a federal
constitutional right to effective assistance of counsel during state post-conviction
proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987); Bonin v. Vasquez, 999 F.2d
425, 430 (9th Cir. 1993).
Martinez v. Ryan, 566 U.S. 1 (2012), established a limited exception to this
general rule. That case held that inadequate assistance of post-conviction review (PCR)
counsel or lack of counsel “at initial-review collateral review proceedings may establish
cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id.
at 9. To show ineffective assistance of PCR counsel, Petitioner must show that the
defaulted ineffective assistance of trial counsel claims are “substantial,” meaning that the
claims have “some merit.” Id. at 14. To show that each claim is substantial, Petitioner
must show that trial counsel performed deficiently, resulting in prejudice, defined as a
reasonable probability of a different outcome at trial. Id.; see Strickland v. Washington,
466 U.S. 668, 695-96 (1984).
If a petitioner cannot show cause and prejudice for a procedurally defaulted claim,
he can still raise the claim if he demonstrates that the court’s failure to consider it will
result in a “fundamental miscarriage of justice.” McCleskey v. Zant, 499 U.S. 467, 494
(1991). A miscarriage of justice means that a constitutional violation has probably

MEMORANDUM DECISION AND ORDER - 13

resulted in the conviction of someone who is actually innocent. Murray v. Carrier, 477
U.S. at 496.
To show a miscarriage of justice, a petitioner must make a colorable showing of
factual innocence. Herrera v. Collins, 506 U.S. 390, 404 (1993). Where the petitioner
pleaded guilty and did not have the evidence in his case evaluated by a jury, he must
show that, based on all of the evidence, “it is more likely than not that no reasonable juror
would have found Petitioner guilty. . . .” Van Buskirk v. Baldwin, 265 F.3d 1080, 1084
(9th Cir. 2001), citing Schlup v. Delo, 513 U.S. 298, 327 (1995). Types of evidence
“which may establish factual innocence include credible declarations of guilt by another,
see Sawyer v. Whitley, 505 U.S. 333, 340 (1992), trustworthy eyewitness accounts, see
Schlup, 513 U.S. at 331, and exculpatory scientific evidence.” Pitts v. Norris, 85 F.3d
348, 350-51 (8th Cir. 1996). The evidence supporting the actual innocence claim must be
“newly presented” evidence of actual innocence, meaning that “it was not introduced to
the jury at trial”; it need not be “newly discovered,” meaning that it could have been
available to the defendant during his trial, though it was not presented to the jury. Griffin
v. Johnson, 350 F.3d 956, 962–63 (9th Cir. 2013).
Discussion of Procedural Default Issue
A. Claim 1
Claim 1 is that the trial court’s refusal to allow him to withdraw his guilty plea
before sentencing amounts to error, which the Court construes as a federal due process

MEMORANDUM DECISION AND ORDER - 14

claim—so long as it was presented that way to the Idaho Supreme Court. Respondent
acknowledges that Petitioner raised a claim regarding withdrawal of his guilty plea on
direct appeal, but argues that it was not raised as a federal claim but only as a state law
claim under Idaho Criminal Rule 33(c); therefore, Respondent argues, it is procedurally
barred in this action. (State’s Lodging B-1, pp. 6-11.) Respondent asserts that the claim
was brought under Idaho Criminal Rule 33(c), governing the withdrawal of guilty pleas
in criminal cases, and not under the Due Process Clause of the United States Constitution.
The standard of law cited by the Idaho Court of Appeals shows that the federal
due process issue of whether a guilty plea was made voluntarily, knowingly, and
intelligently was included as one of the considerations of whether there was “just reason”
to permit the withdrawal of the plea:
If a plea was not taken in compliance with constitutional due process
standards, which require that a guilty plea be made voluntarily, knowingly,
and intelligently, then the standard of “just reason” will be established as a
matter of law. However, a constitutional defect in the plea is not necessary
in order to show a “just reason.”
(State’s Lodging B-4, p. 3 (citations omitted).) Therefore, the Court concludes that the
claim is not procedurally defaulted.
B. Claim 2
Claim 2 is a set of ineffective assistance of trial counsel claims. Respondent argues
that these claims were not presented in the petition for review before the Idaho Supreme
Court. The facts in common among the post-conviction appellate brief, the petition for

MEMORANDUM DECISION AND ORDER - 15

review before the Idaho Supreme Court, and the federal Petition are that counsel coerced
the guilty plea and refused to prepare for and defend him at trial. However, neither of
Petitioner’s two claims asserted in the petition for review is a claim that trial counsel was
ineffective for failure to prepare for or defend him at trial, but the failure to prepare or
defend is mentioned in the facts section of the brief. The claims themselves are centered
on a coerced guilty plea. Nevertheless, because the “prepare and defend” claims were
subcomponents of the ineffective assistance of counsel claim regarding the coerced guilty
plea, and not stand-alone claims based on other facts, the Court will consider them
properly exhausted as subcomponent claims under the Idaho Court of Appeals’ res
judicata ruling, as the Court will explain.
Petitioner raised on post-conviction review the claim that the trial court
wrongfully denied the “motion to withdraw the guilty plea, including the issues
encompassing [the] claims of ineffective assistance of his initial counsel.” (State’s
Lodging D-9, emphasis added.) Therefore, the Idaho Court of Appeals held that the
ineffective assistance of counsel claim was “barred from relitigation by the doctrine of
res judicata.” (State’s Lodging D-9, p. 6.)
Because the Idaho Court of Appeals determined that the ineffective assistance of
counsel claims based upon counsel’s performance in advising Petitioner during the guilty
plea phase of criminal proceedings already had been fully and fairly litigated and could
not be brought again on post-conviction review, this Court likewise must deem it

MEMORANDUM DECISION AND ORDER - 16

properly adjudicated in the direct appeal matter. Prior state adjudication is a prerequisite,
not a bar, to federal adjudication. See Ylst v. Nunnemaker, 501 U.S. 797, 804 n. 3 (1991).
REVIEW OF MOTION TO DISMISS: NONCOGNIZABILITY GROUNDS
Respondent argues that, as discussed in the Court’s Initial Review Order (Dkt. 7,
p.3), free -standing claims of actual innocence are not cognizable in non-capital habeas
cases. Herrera v. Collins, 506 U.S. 390, 400 (1993); Turner v. Calderon, 281 F.3d 851,
872 (9th Cir. 2002). The Court agrees that Respondent has presented a correct statement
of the law. Therefore, Claim 3 will be dismissed for failure to state a claim upon which
relief can be granted.
CONCLUSION
Even under the extremely liberal construction the Court has applied to Petitioner’s
pro se filings here and in state court, the Court concludes that Petitioner filed his federal
Petition too late, that equitable tolling is inapplicable for lack of diligence, and that Claim
3 is noncognizable. The Court will dismiss the Petition with prejudice on statute of
limitations grounds.
ORDER
IT IS ORDERED:
1. Respondent’s Motion to Dismiss (Dkt. 12) is GRANTED. The Petition is
dismissed with prejudice.

MEMORANDUM DECISION AND ORDER - 17

2. If Petitioner did not understand the standard of law for equitable tolling and if he
has any documents or other evidence supporting an assertion of diligence during
the time he was incarcerated at the maximum security prison, he may file a motion
for reconsideration within 28 days after entry of this Order. See Fed. R. Civ. P.
59(e).
3. 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.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner files a
timely notice of appeal, the Clerk of Court shall forward a copy of the notice of
appeal, together with this Order, to the United States Court of Appeals for the
Ninth Circuit. Petitioner may seek a certificate of appealability from the Ninth
Circuit by filing a request in that court.
DATED: September 13, 2017

Honorable Candy W. Dale
United States Magistrate Judge

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