Brown v. Arias

• Court: District Court, S.D. California
• Decided: December 20, 2023
• Docket: 3:23-cv-00778
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JONAS BROWN, Case No.: 23-cv-778-BAS-DDL

12 Petitioner, REPORT AND RECOMMENDATION 13 v. FOR ORDER GRANTING RESPONDENT’S MOTION TO 14 ROBERT A. ARIAS, Warden, DISMISS 15 Respondent. [Dkt. No. 4] 16 17 18 Jonas Brown (“Petitioner”) has filed a Petition for Writ of Habeas Corpus (the 19 “Petition”) pursuant to 28 U.S.C. § 2254. Dkt. No. 1. Before the Court is Respondent’s 20 Motion to Dismiss the Petition (the “Motion”). Dkt. No. 4. This Report and 21 Recommendation is submitted to the Honorable Cynthia Bashant, United States District 22 Judge, pursuant to 28 U.S.C. § 636 and Civil Local Rule HC.2. For the reasons stated 23 below, the undersigned RECOMMENDS the District Court GRANT the Motion and 24 dismiss the Petition with prejudice. 25 I. 26 BACKGROUND 27 On August 23, 2018, a jury convicted Petitioner of premeditated attempted murder, 28 assault with a semi-automatic firearm, and first-degree murder. Dkt. No. 5-7 at 23; see also 1 Dkt. No. 5-3 at 144-51. On January 16, 2019, Petitioner was sentenced to a term of 140 2 years. Dkt. No. 5-7 at 23-24; Dkt. No. 5-3 at 154-56. Petitioner admitted a previous 3 robbery conviction that qualified as a prison prior, serious felony prior, and strike prior, 4 and the trial court applied certain enhancements for firearm use and gang activity, resulting 5 in the term of 140 years. Dkt. No. 5-7 at 23-24; Dkt. No. 5-3 at 153-58. 6 Petitioner appealed to the California Court of Appeal, asserting the trial court erred 7 by: (1) failing to instruct the jury on the lesser-included offense of voluntary manslaughter; 8 (2) miscalculating his conduct and actual custody credits; (3) adding unauthorized gang 9 enhancements to his sentence; and (4) failing to recognize its discretion regarding the 10 firearm enhancement. See Dkt. No. 5-7 at 3. On July 31, 2020, the Court of Appeal issued 11 its decision, largely affirming the judgment.1 12 Petitioner sought review by the California Supreme Court, which summarily denied 13 review on October 28, 2020. See Dkt. No. 5-9. 14 On September 1, 2021, Petitioner filed a petition for habeas corpus pursuant to 28 15 U.S.C. § 2254 in this District in a case styled Brown v. Montgomery (hereafter “Brown I”). 16 See S.D. Cal. Case No. 21-cv-1550-L-WVG. Petitioner raised two federal constitutional 17 bases for relief: (1) that the trial court’s failure to award him actual custody credits violated 18 his federal right to due process, and (2) that the trial court’s failure to give a voluntary 19 manslaughter instruction violated his federal right to due process. See generally Brown I, 20 Dkt. No. 1. On October 27, 2022, the Honorable M. James Lorenz dismissed Petitioner’s 21 petition without prejudice, finding he had failed to exhaust both of his federal constitutional 22 claims. See id., Dkt. No. 10. The Court entered judgment and closed the case on the same 23 day. See id., Dkt. No. 11. 24 / / / 25 / / / 26

27 1 The Court of Appeal agreed with Petitioner that his “actual custody credits and gang 28 1 On December 6, 2022, Petitioner filed a petition for habeas corpus in the California 2 Supreme Court.2 The petition was denied in a one-line order dated March 1, 2023. See 3 Dkt. No. 5-11. 4 On April 16, 2023, Petitioner filed a “First Amended Petition for Writ of Habeas 5 Corpus” in Brown I. See id., Dkt. No. 12. Twelve days later, on April 28, 2023, Judge 6 Lorenz denied the amended petition, noting the Court had closed the case and Petitioner 7 had not been granted permission to file an amended petition. See id., Dkt. No. 13. 8 On April 27, 2023 (the day before Judge Lorenz dismissed the amended petition in 9 Brown I), Petitioner initiated the present action by filing the Petition, which states a single 10 claim for federal habeas corpus relief: failure to instruct on a lesser-included offense. See 11 generally Dkt. No. 1. 12 The instant Motion followed. Dkt. No. 4. Respondent contends the Petition is 13 untimely, is procedurally defaulted, and that Petitioner’s claims are barred by anti- 14 retroactivity rules. See generally id. 15 II. 16 LEGAL STANDARDS 17 A person in state custody may petition a federal court for his release pursuant to a 18 writ of habeas corpus, which “may issue only on the ground that [the prisoner] is in custody 19 in violation of the Constitution or laws or treaties of the United States.” Shinn v. Ramirez, 20 21

22 2 At the Court’s request, Respondent lodged a copy of Petitioner’s petition for habeas 23 corpus in California Supreme Court case no. S277616. See Dkt. No. 9. Because the date 24 of filing is not apparent from the face of the document, the Court takes judicial notice of the date Petitioner filed his state habeas corpus petition from the docket at 25 https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2439517 26 &doc_no=S277616&request_token=NiIwLSEmLkg9WzBVSCNNTElIIEA0UDxTJCMu XztSUCAgCg%3D%3D (last visited December 19, 2023). See Fed. R. Evid. 201 27 (permitting the Court to sua sponte take notice of a fact that “can be accurately and readily 28 determined” from a reliable source). 1 596 U.S. 366, 375 (2022) (citing 28 U.S.C. § 2254) (alteration in original). The 2 Antiterrorism and Effective Death Penalty Act (“AEDPA”) “establishes a [one]-year 3 limitations period for state prisoners to file for federal habeas relief, which run[s] from the 4 latest of four specified dates.” Gonzalez v. Thaler, 565 U.S. 134, 148 (2012) (citing 28 5 U.S.C. § 2244(d)(1)) (alteration in original). These are: 6 (A) the date on which the judgment became final by the conclusion of direct 7 review or the expiration of the time for seeking such review; 8 (B) the date on which the impediment to filing . . . is removed, if the applicant was prevented from filing by such State action; 9 (C) the date on which the constitutional right asserted was initially recognized 10 by the Supreme Court . . . and made retroactively applicable to cases on collateral review; or 11 (D) the date on which the factual predicate of the claim or claims presented 12 could have been discovered through the exercise of due diligence. 13 14 28 U.S.C. § 2244(d)(1). Whether a petition is timely “is a threshold question that [the 15 Court] must decide” before reaching its merits. See Ford v. Gonzalez, 683 F.3d 1230, 1238 16 (9th Cir. 2012). 17 Habeas petitioners are subject to additional “strict rules” in federal court which 18 “promote federal-state comity,” including the requirement that the petitioner exhaust all 19 state court remedies before seeking federal habeas relief. Shinn, 596 U.S. at 377, 378. A 20 “corollary to the exhaustion requirement is the doctrine of procedural default,” pursuant to 21 which a federal court will “generally decline to hear any federal claim that was not 22 presented to the state courts consistent with the state’s own procedural rules.” Id. 23 / / / 24 / / / 25 / / / 26

27 3 All emphasis is added, and citations and internal quotation marks are omitted, unless 28 1 III. 2 DISCUSSION 3 A. The Petition Is Untimely 4 Respondent asserts the Petition is untimely under 28 U.S.C. § 2244(d)(1)(A), and 5 that none of the other sections of the statute apply. See Dkt. No. 4-1 at 12. The Court 6 agrees. 7 Petitioner challenges the judgment entered against him on January 16, 2019. Dkt. 8 5-3 at 154-156. That judgment became final for purposes of the statute of limitations when 9 his direct state-court appeals were completed and a petition for writ of certiorari from the 10 Supreme Court “bec[a]me time barred or [was] disposed of.” See McMonagle v. Meyer, 11 802 F.3d 1093, 1098 (9th Cir. 2015). The Supreme Court has explained that for both 12 federal and state prisoners, “the conclusion of direct review occurs when [the Supreme 13 Court] affirms a conviction on the merits on direct review or denies a petition for a writ of 14 certiorari,” or, if the prisoner chooses not to seek a writ, when the “time for filing a 15 certiorari petition expires.” Jimenez v. Quarterman, 555 U.S. 113, 119 (2009); accord 16 Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (holding that “the period of ‘direct 17 review’ in 28 U.S.C. § 2244(d)(1) includes the period within which a petitioner can file a 18 petition for a writ of certiorari . . . whether or not the petitioner actually files such a 19 petition.”). 20 Here, Petitioner’s direct appeals in state court concluded with the California 21 Supreme Court’s denial of his petition for review on October 28, 2020. Dkt. No. 5-9. His 22 opportunity to seek a writ of certiorari – which he did not do – expired 150 days later, on 23 March 27, 2021.4 The one-year statute of limitations began to run on this date, see Bowen, 24 25 4 A petition for writ of certiorari must ordinarily be filed within 90 days from the date 26 of the lower court judgment or denial of discretionary review. See Sup. Ct. Rule 13. However, on March 19, 2020, the Supreme Court issued an order extending the deadline 27 to file a petition for writ of certiorari “due on or after the date of th[e] order” to 150 days 28 due to the ongoing COVID-19 pandemic. See Miscellaneous Order dated March 19, 2020, 1 188 F.3d at 1159. The deadline for Petitioner to seek federal habeas review was therefore 2 March 27, 2022. 28 U.S.C. § 2244(d)(1)(A). The Petition was filed over a year later, on 3 April 27, 2023. Dkt. No. 1. 4 Petitioner has not made any showing that any of the other provisions of 28 U.S.C. 5 § 2244(d)(1) govern his Petition, and the Court finds they do not. Petitioner has not alleged 6 any government-created impediment to timely filing, does not seek relief pursuant to a 7 newly-recognized constitutional right, and concedes that the facts upon which his Petition 8 is based were known to him within the limitations period. See Dkt. No. 7 at 2 9 (acknowledging that the instant Petition is “the exact same claim” raised in Brown I). 10 Accordingly, the Court finds that the Petition was not filed within AEDPA’s one- 11 year statute of limitations. Absent relief from the statute of limitations, therefore, the 12 Petition must be dismissed as untimely. 13 B. Neither Relation Back nor Tolling Apply to the Untimely Petition 14 Petitioner argues that his Petition is timely because it “relates back” to the petition 15 in Brown I (filed September 1, 2021) since it arises out of a “common core of operative 16 facts” which “unit[e] the original and newly asserted claims.” Dkt. No. 7 at 2. The Court, 17 guided by the Ninth Circuit’s decision in Rasberry v. Garcia, 448 F.3d 1150 (9th Cir. 18 2006), disagrees. 19 The petitioner in Rasberry filed his first habeas petition “well within the limitations 20 period,” which was ultimately dismissed for failure to exhaust. Id. at 1152. After having 21 22 23 https://www.supremecourt.gov/orders/ordersofthecourt/19 (last visited December 19, 2023). The March 20 Miscellaneous Order was not rescinded until July 19, 2021. See 24 Miscellaneous Order dated July 19, 2021, https://www.supremecourt.gov/ 25 orders/ordersofthecourt/20 (last visited December 19, 2023). Thus, any petition for a writ of certiorari arising out of Petitioner’s January 16, 2019 conviction would have been 26 subject to the 150-day deadline. By the Court’s calculation, 150 days after October 28, 27 2020 is March 27, 2021. Respondent states Petitioner’s judgment was final on March 31, 2021. Dkt. No. 4-1 at 12. This difference of four days does not affect the Court’s 28 1 exhausted his claims in state court and after the statute of limitations expired, Rasberry 2 returned to federal court and filed a “First Amended Petition,” which “the clerk of the court 3 did not treat . . . as an amendment of the previously dismissed habeas petition, but instead 4 assigned to it a new case number.” Id. The second petition was then dismissed as untimely. 5 Id. at 1153. Rasberry contended on appeal that his second petition related back to the 6 timely-filed petition. Id. at 1154. 7 The Ninth Circuit rejected Rasberry’s argument. The panel explained that although 8 Rule 15 provides “an amended habeas petition may relate back to the date when the original 9 petition was filed,” the “relation back doctrine does not apply where the previous habeas 10 petition was dismissed because there is nothing to which the new petition could relate 11 back.” Id. at 1154-55 (citing Fed. R. Civ. P. 15(c)(2)).5 The Rasberry court then explicitly 12 held that “a habeas petition filed after the district court dismisses a previous petition 13 without prejudice for failure to exhaust state remedies cannot relate back to the original 14 petition.” Id. Finding that Rasberry’s untimely petition did not relate back to his timely- 15 filed one, the court affirmed its dismissal as untimely. Id. 16 The Court finds the same outcome is warranted here, notwithstanding Petitioner’s 17 argument that Rasberry is “trumped” by the Supreme Court’s decision in Mayle v. Felix, 18 545 U.S. 644 (2005). Dkt. No. 7 at 2. The question before the Mayle court was whether 19 an amended petition which added a new claim for relief related back to the original petition 20 filed in the same case under Rule 15. Id. at 648. The Supreme Court’s unremarkable 21 conclusion was that, “consistent with the general application of Rule 15(c)(2) in civil 22 cases,” Habeas Corpus Rule 2(c)6 and AEDPA, “[s]o long as the original and amended 23 24 5 All citations to “Rule” refer to the Federal Rules of Civil Procedure. Rule 15 provides, “An amendment to a pleading relates back to the date of the original pleading 25 when . . . (B) the amendment asserts a claim or defense that arose out of the same conduct, 26 transaction, or occurrence set out – or attempted to be set out – in the original pleading.” Fed. R. Civ. P. 15(c)(1). This language appeared in Rule 15(c)(2) at the time of the 27 Rasberry opinion. See id. at 1154. 28 1 petitions state claims that are tied to a common core of operative facts, relation back will 2 be in order.” Id. at 664. 3 The Petition presently before the Court, however, is not an amended petition but a 4 separately filed “original pleading.” See Mayle, 545 U.S. at 655 (for purposes of Rule 15, 5 the “original pleading” in a federal habeas proceeding is the petition). Nothing in Mayle 6 suggests that Rule 15’s relation back provisions to apply in these circumstances – indeed, 7 the Rasberry court specifically rejected that interpretation of Mayle. See Rasberry, 448 8 F.3d at 1154-55. Furthermore, it is worth noting that the Mayle court’s concern that 9 construing Rule 15 too broadly would render AEDPA’s one-year statute of limitations “of 10 slim significance” would be multiplied if the Court adopted Petitioner’s view, which would 11 permit habeas corpus litigants to initiate new proceedings at any point in time so long as 12 there is some factual overlap with a timely-filed claim. Mayle, 545 U.S. at 663 (noting it 13 would be “anomalous to allow relation back . . . based on a broader reading [of Rule 15] in 14 federal habeas proceedings than in ordinary civil litigation”). 15 For these reasons, the Court rejects Petitioner’s argument that his Petition relates 16 back to the timely filed petition in Brown I and finds Rasberry controls here. As in 17 Rasberry, the Brown I petition was timely filed but properly dismissed without prejudice 18 for failure to exhaust. See Brown I, Dkt. Nos. 10, 11. As in Rasberry, Petitioner “failed in 19 his attempt” to reopen Brown I. And as in Rasberry, Petitioner “cannot employ Rule 15(c) 20 to relate his second habeas petition back to the first.” Rasberry, 448 F.3d at 1155; see also 21 Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001) (finding Ninth Circuit precedent 22 “foreclose[d]” the “contention” that an untimely petition related back to a timely one “if 23 the first petition was no longer pending”); Porteous v. Fisher, No. 2:15-cv-1817 GEB KJN 24 P, 2016 WL 4208569, at *5 (E.D. Cal. Aug. 10, 2016) (where “petitioner’s prior habeas 25 / / / 26 / / / 27 / / / 28 / / / 1 case was properly dismissed, the claims raised in the instant petition cannot relate back to 2 claims raised in his prior petition”) (citing Rasberry).7 3 The Court further finds that Petitioner cannot salvage his untimely Petition through 4 equitable tolling or the pendency of his state habeas petition. Petitioner “has not pointed 5 to any extraordinary circumstance beyond [his] control that made it impossible for [him] 6 to file her motion within the appropriate time period,” as would be necessary for equitable 7 tolling. U.S. v. Schwartz, 274 F.3d 1220, 1224 (9th Cir. 2001); see also Chaffer v. Prosper, 8 592 F.3d 1046, 1048 (9th Cir. 2010) (recognizing a petitioner “bears the heavy burden” of 9 establishing entitlement to equitable tolling). Although the statute of limitations is tolled 10 during the pendency of a properly-filed application for collateral review in state court, see 11 28 U.S.C. § 224(d)(2), “the filing of collateral proceedings does not delay the date upon 12 which [a petitioner’s] conviction became final for the purposes of triggering AEDPA’s 13 statute of limitations.” McMonagle, 802 F.3d at 1098; see also Ferguson v. Palmateer, 321 14 F.3d 820, 823 (9th Cir. 2003) (holding that “section 2244(d) does not permit the reinitiation 15 of the limitations period that has ended before the state petition was filed”). Because the 16 one-year statute of limitations had already lapsed when Petitioner filed his petition for 17 / / / 18

19 7 Petitioner also contends that the Court should overlook the Petition’s untimeliness 20 because it was “improper” for the Brown I court to deny him “the right to amend his 21 petition.” Dkt. No. 7 at 2. The Court declines to use motion practice in these proceedings to adjudicate Petitioner’s charge of error in Brown I, which is significantly undermined by 22 the fact that Petitioner initiated this case before Judge Lorenz denied the amended petition 23 in Brown I. Moreover, the Court does not agree that Petitioner was “denied” the right to amend. The Brown I court dismissed the petition without prejudice after finding his federal 24 claims were not exhausted. Petitioner was free to request a stay or stay-and-abeyance 25 before that dismissal, or afterwards to move for leave to file his amended petition or to reopen the case, to move for reconsideration of the April 28, 2023 order denying his 26 amended petition, or to appeal that decision to the Ninth Circuit. He did not do any of 27 those things. See Libberton v. Ryan, 583 F.3d 1147, 1161-62 (9th Cir. 2009) (rejecting argument that petition in later case related back to petition in earlier case where earlier 28 1 habeas corpus in state court on December 6, 2022, the pendency of that petition does not 2 operate to toll the statute of limitations here. 3 The Court therefore concludes that neither relation back nor tolling ameliorate 4 AEDPA’s one-year statute of limitations here. The Petition is untimely. 5 C. Procedural Default 6 As a further basis for dismissal, Respondent contends Petitioner’s sole claim is 7 procedurally defaulted because “his direct appeal in state court” was based only on state 8 law and his subsequent attempt to raise a federal constitutional claim on state habeas review 9 was rejected. See Dkt. No. 4-1 at 13-14. Where a state court declines to address a habeas 10 petitioner’s claims because he “failed to meet a state procedural requirement,” that 11 procedural default bars further review in federal court. See Coleman v. Thompson, 501 12 U.S. 722, 729 (1991). To find a claim procedurally defaulted, “the last state court rendering 13 a judgment in the case” must “clearly and expressly state that its judgment rests on a state 14 procedural bar.” See Smith v. Oregon Bd. of Parole and Post-Prison Supervision, 15 Superintendent, 736 F.3d 857, 858 (9th Cir. 2013) (citing Harris v. Reed, 489 U.S. 255 16 (1989)). 17 Respondent notes that in denying review of Petitioner’s December 2022 habeas 18 petition, the California Supreme Court cited In re Waltreus, 62 Cal. 2d 218 (1965). See 19 Dkt. No. 4-1 at 14; see also Dkt. No. 5-11. Waltreus holds that where “arguments were 20 rejected on appeal, . . . habeas corpus ordinarily cannot serve as a second appeal.” 62 Cal. 21 2d. at 225. “In context,” states Respondent, “a Waltreus citation means that a claim raised 22 on appeal ‘cannot be renewed in a petition for writ of habeas corpus.’” Dkt. No. 4-1 at 14. 23 The Court finds the discussion of Waltreus and its implications is misplaced, because 24 Respondent does not argue here that the California appellate courts considered but rejected 25 a federal constitutional claim, but that Petitioner failed to raise any such claim on direct 26 review. Id. (citing O’Sullivan v. Boerckel, 526 U.S. 838 (1999) and Forrest v. Vasquez, 75 27 F.3d 562 (9th Cir. 1996)). There is a “well-established procedural bar that is adequate to 28 bar federal habeas review” in these circumstances pursuant to In re Dixon, 41 Cal. 2d 756 1 (1953). Johnson v. Lee, 578 U.S. 605, 612 (2016) (describing Dixon’s procedural bar); see 2 also Dixon, 41 Cal. 2d at 759 (stating the “general rule” that habeas corpus relief “will not 3 lie where the claimed errors could have been, but were not, raised upon a timely appeal 4 from a judgment of conviction”). But, the California Supreme Court did not cite Dixon in 5 denying Petitioner’s state habeas petition. See Dkt. No. 5-11. It is not for this Court to 6 speculate whether the California Supreme Court would or did find Petitioner’s state habeas 7 petition procedurally barred under Dixon – or any other state procedural rule – because that 8 finding is not “clearly and expressly state[d].” Smith, 736 F. 3d at 858. 9 For these reasons and on the record before it, the Court finds Respondent has not 10 carried its burden of demonstrating the existence of a procedural rule of California which 11 bars this Court’s review of the Petition. See Bennett v. Mueller, 322 F.3d 573, 585-86 (9th 12 Cir. 2003) (holding, as a matter of first impression, that the State bears the burden of proof 13 on a claim of procedural default); Noguera v. Davis, 5 F.4th 1020, 1055 (9th Cir. 2021) 14 (explaining that “[t]he state has the initial burden of pleading the existence of a state 15 procedural rule,” and only after that burden is met is Petitioner required to “assert specific 16 factual allegations that demonstrate the inadequacy of the state procedure” to support the 17 judgment). Accordingly, the Court does not find it necessary to address Petitioner’s 18 arguments on the issue of procedural default, which are largely cut and pasted from his 19 Petition and his appeal to the state appellate court and concern the merits of his Petition. 20 Compare Dkt. No. 7 at 4-5 with Dkt. No. 1 at 14-15 and Dkt. No. 5-4 at 33. 21 As to Petitioner’s fleeting request that the Court “issue a Stay and Abeyance order” 22 to allow him to return to state court to “exhaust[s] his appellate counsel’s ineffective 23 assistance,” Dkt. No. 7 at 6, the Court notes that Petitioner has not pled a Sixth Amendment 24 claim. Thus, to consider Petitioner’s request, the Court would need to assess (at a 25 minimum) timeliness, exhaustion, procedural soundness, and appropriateness of a stay or 26 stay-and-abeyance for an as-yet-unpled claim. Given the Court’s finding that the Petition 27 is incurably time-barred, the undersigned finds it unnecessary to engage in that speculative 28 analysis. See Coley v. Ducart, No. 2:16-CV-1168 AC P, 2017 WL 714304, at *9 (E.D. 1 Cal. Feb. 23, 2017) (declining to address question of procedural default after finding the 2 petition “must be dismissed as untimely whether or not [the] claims are otherwise barred”). 3 D. Non-Retroactivity Under Teague v. Lane 4 As a further alternative grounds for dismissal, Respondent contends the Petition is 5 “barred by anti-retroactivity rules,” citing Teague v. Lane, 489 U.S. 288 (1989). Dkt. No. 6 4-1 at 17. In Teague, the Supreme Court held that in collateral proceedings, “new 7 constitutional rules of criminal procedure will not be applicable to those cases which have 8 become final before the new rules are announced.” Teague, 489 U.S. at 310. 9 Respondent contends “[t]o prevail on his instructional claim, [Petitioner] would need 10 a new rule of constitutional law that would require the use of lesser-included offense 11 instructions in state court, but this type of rule is prohibited under [Teague’s] anti- 12 retroactivity provisions . . ..” Dkt. No. 4-1 at 17. However, Petitioner has not, either in 13 his Petition or in opposition to the Motion, identified any recent Supreme Court decision 14 that “imposes a new obligation” on trial courts related to lesser-included offense 15 instructions that would implicate retroactivity concerns. Teague, 489 U.S. at 301. The 16 Court finds Teague is irrelevant here. 17 E. Certificate of Appealability 18 A certificate of appealability may issue where a habeas petitioner has “made a 19 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253. A certificate 20 of appealability is appropriate “if jurists of reason would find it debatable whether the 21 petition states a valid claim of the denial of a constitutional right.” Murray v. Schirro, 745 22 F.3d 984, 1002 (9th Cir. 2014). Where the court resolves the petition on procedural 23 grounds without reaching the merits, the petitioner must also show that “jurists of reason 24 would find it debatable whether the district court was correct in its procedural ruling.” 25 Slack v. McDaniel, 529 U.S. 473, 484 (2000). This showing is not made, and “no appeal 26 [is] warranted,” where “a plain procedural bar is present and the district court is correct to 27 invoke it to dispose of the case.” Id. 28 / / / 1 For the reasons stated in this Report and Recommendation, the Petition is plainly 2 || time-barred under 28 U.S.C. § 2244(d)(1)(A) and does not relate back to Brown I under 3 controlling Ninth Circuit authority. The Court accordingly finds that the requisite showing 4 || for a certificate of appealability has not been made. 5 V. 6 CONCLUSION 7 For the reasons stated above, the Court finds that the Petition is untimely and must 8 ||be dismissed. Accordingly, the undersigned RECOMMENDS that the District Court 9 |fenter an Order: (1) adopting this Report and Recommendation in its entirety; 10 ||(2) GRANTING the Motion to Dismiss [Dkt. No. 4]; (3) DISMISSING the Petition with 11 || prejudice; and (4) DENYING a certificate of appealability. 12 IT IS HEREBY ORDERED that any objection to this Report and Recommendation 13 || must be filed with the Court and served on all parties by January 8, 2024. Replies to any 14 || objection must be filed with the Court and served on all parties by January 15, 2024. The 15 || parties are advised that failure to file objections within the specified time may waive the 16 to raise those objections on appeal of the Court’s order. See Turner v. Duncan, 158 17 || F.3d 449, 455 (9th Cir. 1998). 18 || IT IS SO ORDERED. 19 || Dated: December 20, 2023 _—_— 20 Tb hohe

22 United States Magistrate Judge 23 24 25 26 27 28