Bazley v. Hickman

72 F. App'x 702

Opinion

MEMORANDUM**

California state prisoner, Mike Bazley, appeals the denial of his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and affirm.

Bazley contends that his habeas petition is a proper vehicle to challenge the validity of a 1965 conviction that was used to increase his current sentence. He relies on an implied exception to Lackawanna County Dist. Attorney v. Coss, 532 U.S. , 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), arguing that habeas relief should be available because he cannot be faulted for “failing to obtain timely review of a constitutional claim.” Id. at 405. We disagree.

Bazle/s failure to follow through after the state trial court’s denial of his 1972 habeas petition refutes his claim that a federal petition in 2000 was the first available vehicle for review of his constitutional challenges to his 1965 guilty plea. Cf. id.; Daniels v. United States, 532 U.S. 374, 383,121 S.Ct. 1578, 149 L.Ed.2d 590 (2001) (discussing in a plurality opinion the possible exceptions to the general rule that prior convictions cannot be attacked in a federal habeas petition after the time for direct and collateral review has expired).

Nor did obtaining a second exculpatory declaration, 36 years after Bazley submitted the first one, establish eligibility for a new “actual innocence” exception for purposes of Lackawanna, 532 U.S. at 405, or Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

AFFIRMED.

Footnotes

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.