Mark Wilson Kiker v. Charles L. Ryan, et al.

• Court: District Court, D. Arizona
• Decided: May 8, 2019
• Docket: 2:18-cv-03392
• Status: Unknown

Opinion

1 2

6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 7 Mark Wilson Kiker, 8 Petitioner CV-18-3392-PHX-JJT (JFM) -vs- 9 Charles L. Ryan, et al., Report & Recommendation Respondents. on Petition for Writ of Habeas Corpus 10 11 I. MATTER UNDER CONSIDERATION 12 Petitioner, presently incarcerated in the Arizona State Prison Complex at Kingman, 13 Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on 14 October 19, 2018 (Doc. 1). On March 26, 2019 Respondents filed their Limited Answer 15 (Doc. 10). Petitioner filed a Reply on April 29, 2019 (Doc. 12). 16 The Petitioner's Petition is now ripe for consideration. Accordingly, the 17 undersigned makes the following proposed findings of fact, report, and recommendation 18 pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of 19 Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure. 20 II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND 21 A. PROCEEDINGS AT TRIAL 22 On May 1, 2007, Petitioner, who was some 40 years of age at the time, was indicted 23 on four counts, including charges of sexual conduct with a minor, public sexual indecency, 24 and molestation of a child, relating to conduct with a child under the age of 15. (Exh. A, 25 Indictment; Exh. F, Sentence 2/14/18.) (Exhibits to the Answer, Doc. 10, are referenced 26 herein as “Exh. ___.”) This was in Maricopa County Superior Court Case No. CR2007- 27 1 Plea Agreement (Exh. B) agreeing to plead guilty to three amended counts (1, 2, and 4) of 2 attempted molestation of a child, in exchange for dismissal of Count 3, and stipulations of 3 a sentence of no less than the presumptive term of 10 years in prison for Count 2, and 4 lifetime probation on Counts 1 and 4. The Plea Agreement inexplicably bore case number 5 CR2007-015577-001 SE, which was at some unidentified time overwritten to reflect 6 Petitioner’s case number. 7 At the plea hearing, Petitioner admitted to committing the offenses described in the 8 offered factual basis:

9 THE COURT: Factual basis, please? MR. NURMI [Defense Counsel]: Yes, Your Honor. Thank 10 you. On April 8th, 2007 in a home located in Gilbert, Arizona, 11 Maricopa County, Mr. Kiker attempted to have sexual contact with a [JQ], a young man who was under the age of 15 at the time. 12 As to Count 1, there was an attempt to have contact with his penis in a masturbatory fashion. 13 As to Count 2, there was an attempt to touch the victim's penis. And as to Count -- as to Count 4, excuse me, there was attempt 14 to contact, to have contact with the victim's anus. THE COURT: Sir, is that all, in fact, true? 15 THE DEFENDANT: Yes, sir. 16 (Exh. C, R.T. 11/30/7 at 7.) 17 The plea was accepted, and on February 15, 2008, Petitioner was sentenced (under 18 the proper case number) to an aggravated sentence of 15 years on Count 2 and consecutive 19 thereto two, concurrent terms of lifetime probation on Counts 1 and 4. (Exh. F, Sentence 20 2/15/08.) 21 B. PROCEEDINGS ON DIRECT APPEAL 22 Petitioner did not file a direct appeal. (Petition, Doc. 1 at 2.) Moreover, as a 23 pleading defendant, Petitioner had no right to file a direct appeal. See Ariz.R.Crim.P. 24 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995). 25

26 C. PROCEEDINGS ON POST-CONVICTION RELIEF 27 1. 1st PCR Proceeding 1 That Notice made no reference to the nature of claims being made. (See id. generally.) 2 Counsel was appointed who eventually filed a Notice of Completion (Exh. H) asserting an 3 inability to find an issue for review. On November 17, 2008, Petitioner filed a pro per 4 PCR Petition (Exh. I) consisting of a form cover page, with no issues or arguments being 5 raised. 6 At the same time, Petitioner apparently filed a second PCR notice. 7 On December 4, 2008, the PCR court ruled the second PCR notice ineffective 8 because of the pending PCR proceeding, struck the PCR petition for various defects of 9 substance and form, and extended the time for Petitioner to file his petition. (Exh. J, M.E. 10 12/4/08.) Petitioner did not timely file his PCR petition, and on June 15, 2009, the court 11 dismissed the PCR proceeding. (Exh. K, M.E. 6/15/09.) 12 Petitioner did not seek review. (Exh. M, M.E. 6/6/18 at 1.) 13 14 2. 2nd PCR Proceeding 15 Almost 9 years later, on May 15, 2018, Petitioner filed a second Notice of Post- 16 Conviction Relief (Exh. L). On June 6, 2018, the PCR court dismissed the proceeding, 17 concluding that the notice was untimely, and Petitioner failed to allege facts to show that 18 his claims were subject to any applicable exception to the time limits. (Exh. M, M.E. 19 6/6/18.) 20 On June 25, 2018, Petitioner filed a Petition for Review (Exh. N), seeking review 21 from the Arizona Court of Appeals. 22 On October 2, 2018, the Arizona Court of Appeals granted review, but summarily 23 denied relief. (Exh. O, Mem. Dec. 10/2/18.) Petitioner did not seek reconsideration or 24 further review, and on November 16, 2018, the appellate court issued its Mandate. (Exh. 25 O, Mandate.) 26 D. PRESENT FEDERAL HABEAS PROCEEDINGS 27 1 Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 19, 2018 (Doc. 1). The Petition 2 contains Petitioner’s declaration under penalty of perjury that it was “placed in the prison 3 mailing system on October 15, 2018.” (Id. at 11.) The envelope in which the Petition 4 arrived reflects that assertion, and bears a postage meter mark dated October 16, 2018. 5 (Doc. 1-1.) 6 Petitioner’s Petition asserts the following two grounds for relief:

7 In Ground One, Petitioner alleges that his Sixth Amendment right to the effective assistance of counsel was violated. In Ground Two, 8 Petitioner alleges that the trial court violated his Fifth and Fourteenth Amendment rights by approving the plea agreement, which bore the 9 wrong case number. 10 (Order 2/14/19, Doc. 6 at 2.) Petitioner’s claim of ineffective assistance is founded upon 11 the same error in case number. (Petition, Doc. 1 at 6.) 12 Regarding timeliness, Petitioner alleges that “with the help of a legal aide [he] just 13 recently discovered what had taken place through the entire scope of his case.” (Petition, 14 Doc. 1 at 11.) 15 Response - On March 26, 2019 Respondents filed their Limited Answer (Doc. 10), 16 arguing that: (1) the Petition is untimely; (2) Petitioner has procedurally defaulted on his 17 state remedies; and (3) waived his claims by pleading guilty. 18 Reply - Petitioner filed a Reply on April 29, 2019 (Doc. 12). Petitioner argues the 19 merits of his claims, references his sentencing under the wrong case number and asserts 20 he has shown the extraordinary circumstances to justify equitable tolling. (Id. at 1-2.) He 21 argues he properly exhausted his claims by presenting them to the Arizona Court of 22 Appeals. He argues that his claims should not be procedurally defaulted because they are 23 based on newly discovered evidence. 24 25 III. APPLICATION OF LAW TO FACTS A. TIMELINESS 26 1. One Year Limitations Period 27 Respondents assert that Petitioner’s Petition is untimely. As part of the Anti- 1 year statute of limitations for all applications for writs of habeas corpus filed pursuant to 2 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 3 U.S.C. § 2244(d). Petitions filed beyond the one year limitations period are barred and 4 must be dismissed. Id. 5 2. Commencement of Limitations Period 6 a. Conviction Final 7 The one-year statute of limitations on habeas petitions generally begins to run on 8 "the date on which the judgment became final by conclusion of direct review or the 9 expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).1 10 For an Arizona noncapital pleading defendant, “Arizona's Rule 32 of-right 11 proceeding for plea-convicted defendants is a form of direct review within the meaning of 12 28 U.S.C. § 2244(d)(1)(A).” Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007). “To 13 bring an of-right proceeding under Rule 32, a plea-convicted defendant must provide to 14 the Arizona Superior Court, within 90 days of conviction and sentencing in that court, 15 notice of his or her intent to file a Petition for Post-Conviction Review.” Id. at 715 (citing 16 Ariz. R. Crim. P. 32.4(a)). 17 Thus, the conviction of a pleading defendant becomes “final” at the conclusion of 18 the first “of-right” post-conviction proceeding under Rule 32, or the expiration of the time 19 to do so. 20 Here, Petitioner filed a timely, of-right PCR proceeding (within 32 days of 21 sentencing), which remained pending until June 15, 2009, when it was dismissed by the 22 PCR court. The undersigned notes, however, that the minute order dismissing the PCR 23 proceeding, although dated June 15, 2009, did not appear to have been entered in the 24 presence of the parties, and was not filed until June 16, 2009. Thus, the dismissal date 25 26

27 1 Later commencement times can result from a state created impediment, newly recognized constitutional rights, and newly discovered factual predicates for claims. See 28 U.S.C. § 1 should be deemed to be the later date, June 16, 2009. See Matter of Maricopa County 2 Juvenile Action No. JS-8441, 174 Ariz. 341, 343, 849 P.2d 1371, 1373 (1992) (concluding 3 on the basis of fundamental fairness, that a minute order be deemed entered on the latest 4 date reflected however denominated). Cf. State v. Whitman, 234 Ariz. 565, 568, ¶ 20, 324 5 P.3d 851, 854 (2014) (“time limit for filing a notice of appeal begins to run on the date of 6 oral pronouncement of sentence”). 7 Rule 32.9(c) requires petitions for review to the Arizona Court of Appeals be filed 8 within thirty days of the trial court’s decision on the PCR petition. Moreover, Arizona 9 applies Arizona Rule of Criminal Procedure 1.3 to extend “the time to file an appeal by 10 five days when the order appealed from has been mailed to the interested party and 11 commences to run on the date the clerk mails the order.” State v. Zuniga, 163 Ariz. 105, 12 106, 786 P.2d 956, 957 (1990). See also State v. Savage, 117 Ariz. 535, 573 P.2d 1388 13 (1978) (applying Rule 1.3(a) to Rule 32.9(c) deadline for petition for review from denial 14 of motion for rehearing in PCR proceeding).2 Here, there is no indication that the PCR 15 court’s decision was delivered to Petitioner or his counsel by any means other than 16 mailing. Accordingly, Petitioner’s time to seek review by the Arizona Court of Appeals 17 expired 35 days after the PCR court’s decision, or on July 21, 2009.3 18 Based on the foregoing, Petitioner’s conviction became final on July 21, 2009, upon 19

20 2 The Arizona Rules of Criminal Procedure were largely all modified, effective January 1, 21 2018. Most of the changes were stylistic. As part of those changes, Rule 1.3 was amended to exclude from the Additional Time After Service provisions “the clerk's distribution of 22 notices, minute entries, or other court-generated documents.” Ariz. R. Crim. Proc. 1.3(a)(5). This revision was subsequent to the relevant proceedings in this case. 23 3 For purposes of 28 U.S.C. § 2244, “direct review" includes the period within which a 24 petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. Gonzalez v. Thaler, 565 U.S. 25 134, 150 (2012). The Supreme Court “can review, however, only judgments of a ‘state court of last resort’ or of a lower state court if the ‘state court of last resort’ has denied 26 discretionary review.” Gonzalez v. Thaler, 565 U.S. 134, 154 (2012) (citing U.S. Sup.Ct. R. 13.1 and 28 U.S.C. § 1257(a)). Here, Petitioner did not seek direct review by the 27 Arizona Supreme Court. Accordingly, the time for seeking a writ of certiorari with the U.S. Supreme Court cannot be considered in determining when Petitioner's judgment 1 expiration of his time to file a petition for review with the Arizona Supreme Court. 2 3 b. Newly Discovered Claims 4 Although the conclusion of direct review normally marks the beginning of the 5 statutory one year, section 2244(d)(1)(D) does provide an alternative of “the date on which 6 the factual predicate of the claim or claims presented could have been discovered through 7 the exercise of due diligence.” Accordingly, where despite the exercise of due diligence 8 a petitioner was unable to discover the factual predicate of his claim, the statute does not 9 commence running on that claim until the earlier of such discovery or the elimination of 10 the disability which prevented discovery. The commencement is not delayed until actual 11 discovery, but only until the date on which it “could have been discovered through the 12 exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). 13 Petitioner argues his claims were only recently discovered. Although Petitioner 14 does not assert any particular facts that were discovered, it would appear he references the 15 fact that his Plea Agreement originally bore the wrong case number. But, Petitioner 16 suggest no reason why, with due diligence, this fact could not have been previously 17 discovered. For example, he does not suggest he was unaware of the number of his case, 18 or did not have a copy of plea agreement available to him. The mere fact that Petitioner 19 had not noticed the discrepancy until recently does not indicate that it could not have been 20 discovered previously. 21 Moreover, information available to a habeas petitioner’s attorneys is relevant to the 22 determination whether knowledge is chargeable to a petitioner. “Under ordinary 23 circumstances-and there is no room for the application of a different principle here-a 24 lawyer's knowledge is attributed to her client.” Wood v. Spencer, 487 F.3d 1, 4-5 (1st Cir. 25 2007), cert. denied, 128 S. Ct. 260 (2007). See also Ford v. Galaza, 683 F.3d 1230, 1236 26 (9th Cir. 2012) (citing Wood, 487 F.3d at 4-5, but not relying on attribution of attorney’s 27 knowledge to petitioner). Petitioner does not suggest that the relevant documents were 1 Perhaps Petitioner intends to assert that he did not perceive the (purported) legal 2 ramifications of the case number discrepancy. “Time begins when the prisoner knows (or 3 through diligence could discover) the important facts, not when the prisoner recognizes 4 their legal significance.” Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001). 5 Accordingly § 2244(d)(1)(D) has no application to Petitioner’s claims. 6 7 c. Conclusion re Commencement 8 Therefore, Petitioner’s one year began running on July 22, 2009, and without any 9 tolling expired on July 21, 2010.4 10 11 3. Timeliness Without Tolling 12 Petitioner’s Petition (Doc. 1) was filed on October 19, 2018, but avows it was 13 delivered to prison officials for mailing four days earlier. “In determining when a pro se 14 state or federal petition is filed, the ‘mailbox’ rule applies. A petition is considered to be 15 filed on the date a prisoner hands the petition to prison officials for mailing.” Porter v. 16 Ollison, 620 F.3d 952, 958 (9th Cir. 2010). Respondents do not counter the Petitioner’s 17 avowal, and the undersigned finds that his Petition was delivered to prison officials for 18 mailing on the date indicated. Accordingly, the Petition should be deemed “filed” as of 19 October 15, 2018. 20 As determined in subsection (2) above, without any tolling Petitioner’s one year 21 habeas limitations period expired no later than July 21, 2010, making his October 15, 2018 22 Petition over eight years delinquent. 23 4. Statutory Tolling 24 Tolling for Properly Filed Petitions - The AEDPA provides for tolling of the 25 limitations period when a "properly filed application for State post-conviction or other 26 collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 27 1 2244(d)(2). 2 However, statutory tolling of the habeas limitations period only results from state 3 applications that are “properly filed,” and an untimely application is never “properly filed” 4 within the meaning of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408 (2005). For 5 purposes of applying the “properly filed” requirement of § 2244(d), the federal courts look 6 to the “last reasoned decision” of the state courts. Curiel v. Miller, 830 F.3d 864, 869 (9th 7 Cir. 2016). 8 Application - Petitioner’s limitations period commenced running on July 22, 2009 9 (after conclusion of his first PCR proceeding). Petitioner’s next PCR proceeding was not 10 commenced until May 15, 2018. That Petition was signed as of May 9, 2018. Because it 11 does not affect the outcome, the undersigned presumes (in Petitioner’s favor) that this 12 notice was delivered to prison officials for mailing on that date, and should be deemed 13 filed as of May 9, 2018. 14 At that time, his one year had been expired for over seven years and ten months. 15 Once the statute has run, a subsequent post-conviction or collateral relief filing does not 16 reset the running of the one year statute. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 17 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). 18 Nor, as argued by Respondents, is Petitioner entitled to tolling for the gap between 19 his two PCR proceedings.

20 In this circuit, we apply a two-part test to determine whether the “gap” should be tolled. “First, we ask whether the petitioner's 21 subsequent petitions are limited to an elaboration of the facts relating to the claims in the first petition. If not, these petitions constitute a 22 ‘new round’ and the gap between the rounds is not tolled.” But, if the subsequent petition “simply attempted to correct the deficiencies” in 23 the prior petition, we will construe the new petitions as part of the first “full round” of collateral review. In such circumstance, we then 24 proceed to ask whether the petition was denied on the merits or deemed untimely. If the petition was denied on the merits, we will 25 toll the time period between the two properly-filed petitions; if it was deemed untimely, we will not. 26 Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007) (citations omitted) (quoting 27 1 Because Petitioner failed to raise any claims in his first PCR proceeding (either in 2 his Notice (Exh. G) or his original pro per PCR Petition (Exh. I)), Petitioner’s second 3 proceeding was not merely an attempt to elaborate on facts in the first (and thus a 4 continuation of the first). See Hemmerle v. Schriro 495 F.3d 1069, 1075 (9th Cir. 2007) 5 (“Hemmerle's first PCR notice, unaccompanied by any supporting documentation or 6 factual elaboration, was insufficient to raise a claim to which the second petition could 7 relate back.”). 8 9 5. Equitable Tolling 10 "Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available 11 in our circuit, but only when ‘extraordinary circumstances beyond a prisoner's control 12 make it impossible to file a petition on time' and ‘the extraordinary circumstances were 13 the cause of his untimeliness.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003).

14 To receive equitable tolling, [t]he petitioner must establish two elements: (1) that he has been pursuing his rights diligently, and (2) 15 that some extraordinary circumstances stood in his way. The petitioner must additionally show that the extraordinary 16 circumstances were the cause of his untimeliness, and that the extraordinary circumstances ma[de] it impossible to file a petition on 17 time. 18 Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal citations and quotations 19 omitted). “[A]n external force must cause the untimeliness, rather than, as we have said, 20 merely ‘oversight, miscalculation or negligence on [the petitioner's] part, all of which 21 would preclude the application of equitable tolling.’” Waldron-Ramsey v. Pacholke, 556 22 F.3d 1008, 1011 (9th Cir. 2009) (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th 23 Cir.2008)). “Indeed, ‘the threshold necessary to trigger equitable tolling [under AEDPA] 24 is very high, lest the exceptions swallow the rule.’ ” Miranda v. Castro,292 F.3d 1063, 25 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.). 26 Even if extraordinary circumstances prevent a petitioner from filing for a time, 27 equitable tolling will not apply if he does not continue to diligently pursue filing 1 in attempting to file after the extraordinary circumstances began, the link of causation 2 between the extraordinary circumstances and the failure to file is broken, and the 3 extraordinary circumstances therefore did not prevent timely filing.” Valverde v. Stinson, 4 224 F.3d 129, 134 (2nd Cir. 2000). Ordinarily, thirty days after elimination of a roadblock 5 should be sufficient. See Guillory v. Roe, 329 F.3d 1015, 1018, n.1 (9th Cir. 2003). 6 Petitioner bears the burden of proof on the existence of cause for equitable tolling. 7 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Rasberry v. Garcia, 448 F.3d 1150, 1153 8 (9th Cir. 2006) (“Our precedent permits equitable tolling of the one-year statute of 9 limitations on habeas petitions, but the petitioner bears the burden of showing that 10 equitable tolling is appropriate.”). 11 Petitioner argues he is entitled to equitable tolling because ““with the help of a legal 12 aide [he] just recently discovered what had taken place through the entire scope of his 13 case.” (Petition, Doc. 1 at 11.) But these allegations do not show any external force 14 precluding Petitioner from timely filing his federal petition. As noted above regarding 28 15 U.S.C. § 2244(d)(1)(D) (newly discovered claims), Petitioner points to no impediment 16 other than his own failure to recognize his claim. That is not sufficient to justify equitable 17 tolling. Waldron-Ramsey, 556 F.3d at 1011. 18 Nor is Petitioner’s untrained, pro se status an extraordinary circumstance. “It is 19 clear that pro se status, on its own, is not enough to warrant equitable tolling.” Roy v. 20 Lampert, 465 F.3d 964, 970 (9th Cir. 2006). A prisoner's “proceeding pro se is not a ‘rare 21 and exceptional’ circumstance because it is typical of those bringing a § 2254 claim.” 22 Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000). See also Rasberry v. Garcia, 448 23 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner's lack of legal sophistication is not, 24 by itself, an extraordinary circumstance warranting equitable tolling”). 25 Nor can Petitioner point to some failing by counsel. First, Petitioner fails to show 26 that he had retained counsel to represent him in his habeas proceeding. 27 Second, even if Petitioner could rely on some failing by trial or PCR counsel, he 1 exceptional circumstance. Although an attorney's behavior can establish the extraordinary 2 circumstances required for equitable tolling, mere negligence or professional malpractice 3 is insufficient. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001). A “garden variety 4 claim of excusable neglect,’ such as a simple ‘miscalculation’ that leads a lawyer to miss 5 a filing deadline does not warrant equitable tolling.’ ” Holland v. Florida, 560 U.S. 631, 6 651-652 (2010). Rather, the attorney’s misconduct must rise to the level of extraordinary 7 circumstances. Id. See e.g. Holland, 560 U.S. at 652 (concluding that a “garden variety” 8 claim of “excusable neglect” or attorney misconduct such as miscalculation of a deadline 9 did not justify equitable tolling, but that an attorney’s repeated failures to respond to a 10 client’s inquiries over a period of years, and demands for timely action, might establish 11 equitable tolling); and Gibbs v. Legrand, 767 F.3d 879, 885 (9th Cir. 2014) (“while agency 12 law binds clients, including federal habeas petitioners, to their attorneys' negligence, ‘a 13 client cannot be charged with the acts or omissions of an attorney who has abandoned 14 him’”). Here, at most, Petitioner asserts ordinary negligence or professional malpractice 15 by prior counsel in failing to identify his claim on the erroneous case number. 16 The undersigned finds no basis for equitable tolling. 17 6. Actual Innocence 18 To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 19 2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas 20 petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 133 S.Ct. 21 1924, 1935 (2013). To invoke this exception to the statute of limitations, a petitioner 22 “’must show that it is more likely than not that no reasonable juror would have convicted 23 him in the light of the new evidence.’” Id. at 1935 (quoting Schlup v. Delo, 513 U.S. 298, 24 327 (1995)). This exception, referred to as the “Schlup gateway,” applies “only when a 25 petition presents ‘evidence of innocence so strong that a court cannot have confidence in 26 the outcome of the trial unless the court is also satisfied that the trial was free of 27 1 credible, such a claim requires petitioner to support his allegations of constitutional error 2 with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy 3 eyewitness accounts, or critical physical evidence—that was not presented at trial. Because 4 such evidence is obviously unavailable in the vast majority of cases, claims of actual 5 innocence are rarely successful.” Schlup, 513 U.S. at 324. 6 Petitioner makes no claim of actual innocence based on new credible evidence, 7 (only technical or legal errors in his prosecution) and the record reveals none. 8 9 7. Summary re Statute of Limitations 10 Petitioner’s one year habeas limitations period commenced running on July 22, 11 2009, and expired on July 21, 2010, making his Petition over eight years delinquent. 12 Petitioner has shown no basis for additional statutory tolling, and no basis for equitable 13 tolling or actual innocence to avoid the effects of his delay. Consequently, the Petition 14 must be dismissed with prejudice. 15 B. OTHER DEFENSES 16 Because the undersigned concludes that Petitioner’s Petition is plainly barred by 17 the statute of limitations and resolution of the other defenses would involve addressing the 18 merits of various claims to dispose of assertions of cause from ineffective assistance of 19 counsel, or the involuntariness of his plea and thus his waiver of claims, Respondents’ 20 other defenses are not reached. 21

22 IV. CERTIFICATE OF APPEALABILITY 23 Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires that 24 in habeas cases the “district court must issue or deny a certificate of appealability when it 25 enters a final order adverse to the applicant.” Such certificates are required in cases 26 concerning detention arising “out of process issued by a State court”, or in a proceeding 27 1 2253(c)(1). 2 Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention 3 pursuant to a State court judgment. The recommendations if accepted will result in 4 Petitioner’s Petition being resolved adversely to Petitioner. Accordingly, a decision on a 5 certificate of appealability is required. 6 Applicable Standards - The standard for issuing a certificate of appealability 7 (“COA”) is whether the applicant has “made a substantial showing of the denial of a 8 constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the 9 constitutional claims on the merits, the showing required to satisfy § 2253(c) is 10 straightforward: The petitioner must demonstrate that reasonable jurists would find the 11 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 12 McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on 13 procedural grounds without reaching the prisoner’s underlying constitutional claim, a 14 COA should issue when the prisoner shows, at least, that jurists of reason would find it 15 debatable whether the petition states a valid claim of the denial of a constitutional right 16 and that jurists of reason would find it debatable whether the district court was correct in 17 its procedural ruling.” Id. 18 Standard Not Met - Assuming the recommendations herein are followed in the 19 district court’s judgment, that decision will be on procedural grounds. Under the reasoning 20 set forth herein, jurists of reason would not find it debatable whether the district court was 21 correct in its procedural ruling. 22 Accordingly, to the extent that the Court adopts this Report & Recommendation as 23 to the Petition, a certificate of appealability should be denied. 24 25 V. RECOMMENDATION 26 IT IS THEREFORE RECOMMENDED that the Petitioner's Petition for Writ of 27 Habeas Corpus, filed October 19, 2018 (Doc. 1) be DISMISSED WITH PREJUDICE. l and recommendations are adopted in the District Court’s order, a Certificate of 2 || Appealability be DENIED. 3 4 VI. EFFECT OF RECOMMENDATION 5 This recommendation is not an order that is immediately appealable to the Ninth 6 || Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 7 || Appellate Procedure, should not be filed until entry of the district court's judgment. 8 However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall 9 || have fourteen (14) days from the date of service of a copy of this recommendation within || which to file specific written objections with the Court. See also Rule 8(b), Rules 11 |} Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days 12 || within which to file a response to the objections. Failure to timely file objections to any 13 || findings or recommendations of the Magistrate Judge will be considered a waiver of a 14 || party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 15 || F.3d 1114, 1121 (9% Cir. 2003)(en banc), and will constitute a waiver of a party's right to || appellate review of the findings of fact in an order or judgment entered pursuant to the 17 || recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th 18 || Cir. 2007). 19 In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that 20 || “[uJnless otherwise permitted by the Court, an objection to a Report and Recommendation 21 || issued by a Magistrate Judge shall not exceed ten (10) pages.” 22 Dated: May 8, 2019 _ AL Mie |p PARR 19 0502 on He docx United States Magistrate Judge 25 26 27 28