Opinion

(HC) Rosiles v. Pfeiffer

Court
District Court, E.D. California
Filed
Aug 23, 2019
Cited by
0 cases
Authority
More cited than 17.3%

no equitable tolling where petitioner failed to 7 show his auditory hallucinations, severe depression and anxiety “actually caused him not to be 8 able to file despite his diligence”

How later courts described this case

  • no equitable tolling where petitioner failed to 7 show his auditory hallucinations, severe depression and anxiety “actually caused him not to be 8 able to file despite his diligence”
  • pro se prisoner filing is dated from the date prisoner delivers it to prison authorities
  • recognizing that the lack of access to library material does not 18 automatically qualify as grounds for equitable tolling
  • without 19 demonstration of petitioner's diligence, lockdowns at prison allegedly eliminating access to law library were not extraordinary 20 circumstances warranting equitable tolling

Written by the judges who cited it.

The opinion

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 FRANK RENE ROSILES, No. 2:17-cv-02600 KJM GGH P

12 Petitioner,

13 v. FINDINGS AND RECOMMENDATIONS

14 C. PFEIFFER,

15 Respondent.

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17 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus

18 pursuant to 28 U.S.C. § 2254. ECF No. 24. The matter was referred to the United States

19 Magistrate Judge pursuant to 28 U.S.C. § 626(b)(1) and Local Rule 302(c).

20 Procedural Background

21 The court will provide the relevant background for context from its October 1, 2018

22 Findings and Recommendations:

23 On December 9, 2011, petitioner pled no contest in Yuba County

Superior Court to kidnapping (Pen. Code § 207(a)), robbery (Pen.

24 Code § 211), first degree burglary (Pen. Code §§ 459, 460), second

degree burglary (Pen. Code §§ 459, 460), and kidnapping to commit

25 robbery (Pen. Code § 209(b)(1)). Resp’t’s Lodg. Doc. Nos. 1, 2. Two

sentencing enhancements (Pen. Code §667.5(b)) were also found to

26 be true. Id. Petitioner was sentenced to an indeterminate sentence of

eleven years and eight months to life. Id. On December 4, 2012, the

27 California Court of Appeal, Third Appellate District affirmed in part

and reversed in part the judgment. Resp’t’s Lodg. Doc. No. 2.

28 Specifically, the California Court of Appeal remanded to the superior

1 court with directions to amend its records to reflect petitioner’s

presentence custody credits to 21 days of credit. Id. The remainder

2 of the judgment was affirmed. Id. Petitioner did not seek review with

the California Supreme Court.

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Thereafter, petitioner filed subsequent state collateral challenges.

4 The first state habeas petition was filed in Yuba County Superior

Court on December 7, 2016, and denied on December 19, 2016.

5 Resp’t’s Lodg. Doc. Nos. 3, 4.1 The second state habeas petition was

again filed in Yuba County Superior Court on January 16, 2017, and

6 denied on February 9, 2017. Resp’t’s Lodg. Doc. Nos. 5, 6. On

February 28, 2017, petitioner filed a notice of appeal from Yuba

7 County Superior Court’s denial in the California Court of Appeal.

Resp’t’s Lodg. Doc. No. 7. The California Court of Appeal dismissed

8 the case after making the determination “that the order appealed from

[was] nonappealable.” Id. (citing to In re Clark, 5 Cal.4th 750, 767,

9 fn.7 (1993); In re Crow, 4 Cal.3d 613, 621, fn. 8 (1971). Petitioner

filed a subsequent state habeas petition again with the California

10 Court of Appeal on May 2, 2017, and was denied on May 12, 2017.

Resp’t’s Lodg. Doc. Nos. 8, 9. Petitioner’s final state habeas petition

11 was filed with the California Supreme Court on June 12, 2017, and

was denied on September 20, 2017. Resp’t’s Lodg. Doc. Nos. 10, 11.

12 The California Supreme Court’s denial included a citation to People

v. Duvall, 9 Cal.4th 464, 474 (1995) for the proposition that “a

13 petition for writ of habeas corpus must include copies of reasonably

available documentary evidence.” See Resp’t’s Lodg. Doc. No. 11.

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15 ECF No. 20 at 2-3.

16 On December 7, 2017, petitioner filed the instant federal petition. ECF No. 1. On

17 February 12, 2018, respondent filed a motion to dismiss on the ground that petitioner was time-

18 barred by the one-year statute of limitations pursuant to 28 U.S.C. § 2244(d). ECF No. 9. On

19 October 1, 2018, the court issued Findings and Recommendations recommending that

20 respondent’s motion to dismiss be granted and the petition be dismissed with prejudice based on

21 untimeliness. ECF No. 20. The undersigned later withdrew its October 1, 2018 Findings and

22 Recommendations after receiving petitioner’s objections stating he was entitled to equitable

23 tolling based on being an indigent litigant; lacking legal knowledge; having limited resources and

24 time in the law library; and having a mental impairment. ECF Nos. 23, 24. The court ordered

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1 [Fn.1 in original] The court affords petitioner application of the mailbox rule as to all his habeas

26 filings in state court and federal court. Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner

filing is dated from the date prisoner delivers it to prison authorities); Stillman v. Lamarque, 319 F.3d

27 1199, 1201 (9th Cir. 2003) (mailbox rule applies to pro se prisoner who delivers habeas petition to prison

officials for the court within limitations period). In any event, the mailbox rule is inconsequential in this

28 case.

1 briefing on petitioner’s equitable tolling issue, which is now fully submitted before the court.

2 ECF Nos. 25 (respondent’s opposition), 33 (Petitioner’s reply), 39 (respondent’s reply), 43

3 (petitioner’s sur-reply).

4 After carefully reviewing the filings, and application of the applicable law, the court now

5 issues the following Findings and Recommendations.

6 Legal Standards

7 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of

8 1996 (hereinafter “AEDPA”). Pursuant to 28 U.S.C. § 2244(d)(1), AEDPA imposes a one-year

9 statute of limitations for federal habeas corpus petitions. 28 U.S.C. § 2244(d)(1) provides, in

10 pertinent part:

11 A 1-year period of limitation shall apply to an application for a writ

of habeas corpus by a person in custody pursuant to the judgment of

12 a State court. The limitation period shall run from the latest of–

13 (A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

14 seeking such review;

15 (B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws

16 of the United States is removed, if the applicant was

prevented from filing by such State action;

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(C) the date on which the constitutional right asserted was

18 initially recognized by the Supreme Court, if the right has

been newly recognized by the Supreme Court and made

19 retroactively applicable to cases on collateral review;

20 (D) or the date on which the factual predicate of the claim or

claims presented could have been discovered through the

21 exercise of due diligence.

22 28 U.S.C. § 2244(d).

23 Notwithstanding petitioner’s collateral state habeas petitions, petitioner’s conviction

24 became final for purposes of AEDPA forty days after the Court of Appeal’s decision on January

25 13, 2013.2 See 28 U.S.C. § 2244(d)(1)(A); Cal. Rules of Court 8.264(b)(1) (Court of Appeals

26 decision is final 30 days after filing); Cal. Rules of Court 8.500(e)(1) (Petition for review with the

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2 The fortieth day is a Sunday. However, because the last day ended on a Sunday, the period

28 continues to run to the next day. See Fed. R. Civ. P. 6(a)(1)(C).

1 California Supreme Court must be served and filed 10 days after the Court of Appeal’s decision is

2 final). Petitioner did not submit a petition for review with the California Supreme Court.

3 Accordingly, the statute of limitations pursuant to 28 U.S.C. § 2244(d)(1)(A) commenced the

4 following day on January 14, 2013. See Patterson v. Stewart, 251 F.3d 1243, 1244 (9th Cir.

5 2001) (citing Fed. R. Civ. P. 6(a)). Petitioner had until, January 14, 2014, that is until one year

6 after finality of conviction, to file a timely federal petition absent applicable tolling. This instant

7 action filed December 12, 2017 is barred as untimely unless petitioner is entitled to statutory or

8 equitable tolling. Here, petitioner does not propose he is entitled to statutory tolling, only

9 equitable tolling. Nevertheless, the court provides its discussion on statutory tolling, which is

10 relevant here, from its October 1, 2018 Findings and Recommendations:

11 Respondent argues petitioner’s subsequent state post-conviction

collateral actions do not entitle petitioner to statutory tolling. ECF

12 No. 9 at 4-5. The court agrees. Petitioner filed his first state habeas

petition beyond AEDPA’s one-year statute on December 7, 2016,

13 approximately two years and 11 months after the statute of

limitations expired. Accordingly, petitioner is not entitled to

14 statutory tolling. A state court habeas post-conviction process

commenced beyond the expiration of AEDPA’s statute of limitations

15 does not toll or revive the limitations period under section

2244(d)(1). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.

16 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).

Accordingly, this petition is untimely unless petitioner can show

17 equitable tolling exists.

18 ECF No. 20 at 4.

19 A habeas petitioner is entitled to equitable tolling of AEDPA’s one-year statute of

20 limitations only if he shows: (1) that he has been pursuing his rights diligently; and (2) that some

21 extraordinary circumstances stood in his way and prevented timely filing. See Holland v. Florida,

22 560 U.S. 631, 649 (2010); Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). The diligence

23 required for equitable tolling purposes is “reasonable diligence,” not “maximum feasible

24 diligence.” See Holland, 560 U.S. at 653. See also Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir.

25 2010).

26 As to the extraordinary circumstances required, the Ninth Circuit has held that the

27 circumstances alleged must make it impossible to file a petition on time, and that the

28 extraordinary circumstances must be the cause of the petitioner’s untimeliness. See Bills v. Clark,

1 628 F.3d at 1097 (citing Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)). This is a very high

2 threshold, “lest the exception swallow the rule.” See Miranda v. Castro, 292 F.3d 1063, 1066 (9th

3 Cir. 2002). In addition, ‘[w]hen external forces, rather than a petitioner’s lack of diligence,

4 account for the failure to file a timely claim, equitable tolling may be appropriate.” Loft v.

5 Mueller, 304 F.3d 918, 922 (9th Cir. 2002) (quoting Miles v. Prunty, 187 F.3d 1104, 1107 (9th

6 Cir. 1999)). Determining whether equitable tolling is warranted is a “fact-specific inquiry.”

7 Spitsyn, 345 F.3d at 799 (citing Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)).

8 Petitioner contends equitable tolling is applicable based on the following four grounds: (1)

9 petitioner is an indigent litigant; (2) petitioner lacks legal knowledge; (3) petitioner had limited

10 resources and time in the law library; and (4) petitioner’s mental impairment.

11 Discussion

12 Indigent Litigant

13 First, petitioner claims he is entitled to equitable tolling because he “is indigent and has

14 not been able to hire an attorney which has forced petitioner to seek assistance from fellow

15 inmates/jail house lawyers.” ECF No. 23 at 3. However, petitioner’s indigency fails to constitute

16 as an extraordinary circumstance, especially considering petitioner’s capability of filing

17 subsequent state habeas petitions prior to filing his federal habeas petition. Bermudez v. Lewis,

18 58 F. App'x 268, 269 (9th Cir. 2003); see also Chaffer v. Prosper, 592 F.3d 1046 (9th Cir. 2010)

19 (petitioner was not entitled to equitable tolling based on his reliance on other inmates who were

20 transferred or too busy to attend to petitioner’s petition.) The undersigned recommends denial of

21 equitable tolling on this ground.

22 Lack of Legal Knowledge

23 Secondly, petitioner argues he lacks the “the legal knowledge and training necessary to

24 comprehend law and the legal process.” ECF No. 23 at 3. However, the Ninth Circuit has clearly

25 held that “a pro se petitioner’s lack of legal sophistication is not, by itself, an extraordinary

26 circumstance warranting equitable tolling.” Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.

27 2006). Therefore, the undersigned recommends denial of equitable tolling on this ground as well.

28 ////

1 Limited Resources and Time in Law Library

2 Next, petitioner claims he should be entitled to equitable tolling on the basis that he has

3 “woefully deficient time available in the library” and has scarce “legal materials available.” ECF

4 No. 23 at 3. Specifically, petitioner alleges the following examples demonstrate extraordinary

5 circumstances entitling him to equitable tolling; inmates are only given 18-24 hours a year to

6 conduct legal research; “law library staff and workers” are unable to provide advice or direction

7 on how to address legal questions; and several transfers and lockdowns have prevented

8 petitioner’s ability to conduct proper research. Id. at 3-4; see also ECF No. 33 at 4-5. Petitioner

9 does not provide specific details regarding the period of time in which his access to the law

10 library, lockdowns and transfers prevented him from filing timely. Instead, petitioner alleges the

11 limited time inmates in general have when it comes to visiting the law library; such as the amount

12 of time it takes to enter the library, to fill out a request to return and receive legal materials and

13 log off computers. ECF No. 33 at 4-5. However, the fact that petitioner was able to work on his

14 state habeas petitions prior to the filing of his federal habeas petitions cuts against petitioner’s

15 argument that he is entitled to equitable tolling on this basis.

16 Lockdowns, however, and resulting restricted access to the prison

law library are not, by themselves, extraordinary circumstances for

17 prisoners. See e.g. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.

2002) (recognizing that the lack of access to library material does not

18 automatically qualify as grounds for equitable tolling); United States

v. Van Poyck, 980 F.Supp. 1108, 1111 (C.D. Cal. 1997) (without

19 demonstration of petitioner's diligence, lockdowns at prison

allegedly eliminating access to law library were not extraordinary

20 circumstances warranting equitable tolling); Rosati v. Kernan, 417

F.Supp.2d 1128, 1132 (C.D. Cal. 2006) (“[P]etitioner's complaints

21 about limited access to the law library and legal materials at various

state prisons and occasional prison lockdowns do not warrant

22 equitable tolling since petitioner has not shown any causal

connection between these events and his failure to timely file his

23 habeas corpus petition.”); see also Corrigan v. Barbery, 371

F.Supp.2d 325, 330 (W.D.N.Y. 2005) (“In general, the difficulties

24 attendant on prison life such as transfers between facilities, solitary

confinement, lockdowns, restricted access to the law library, and an

25 inability to secure court documents, do not by themselves qualify as

extraordinary circumstances.”). In sum, Petitioner does not explain

26 how any lockdowns constituted extraordinary circumstances that

prevented him from timely filing his federal petition.

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28 Robinson v. Marshall, No. CV-07-1606-GHK (JWJ), 2008 WL 2156745, at *3 (C.D. Cal. May

1 18, 2008), aff'd, 405 F. App'x 241 (9th Cir. 2010). Similarly, petitioner’s argument that prison

2 staff were not able to provide legal advice on how to address legal questions also fails. See Lewis

3 v. Casey, 518 U.S. 343, 354 (1996) (the court rejected the argument that the “State must enable

4 the prisoner to discover grievances, and to litigate effectively once in court” because to “demand

5 the conferral of such sophisticated legal capabilities upon a mostly uneducated and indeed largely

6 illiterate prison population is effectively to demand permanent provision of counsel, which we do

7 not believe the Constitution requires.”) Moreover, petitioner’s alleged reliance on the assistance

8 of other inmates to timely file his habeas petition fails to demonstrate extraordinary circumstance

9 entitling petitioner to equitable tolling. See Chaffer, 592 F.3d at 1049. Accordingly, the

10 undersigned recommends denial of equitable tolling on these grounds.

11 Mental Impairment

12 Lastly, petitioner claims his mental impairment constitutes as an extraordinary

13 circumstance entitling him to equitable tolling. Petitioner states “[d]uring the period of time

14 between 2012 through 2016 Petitioner has been a patient of the mental health system and has

15 been prescribed several types of medications which has effects on petitioner’s ability to perform,

16 and hindered ability to conduct research and has made it difficult to find assistance in this legal

17 matter.” ECF No. 23 at 4. Petitioner further states that he does not know “what his mental

18 diagnosis is” and “partially recollects discussing bi-polar disorder, depression, paranoia and

19 hearing voices.” ECF No. 33 at 6. Ultimately, petitioner maintains his “mental defect” prevented

20 him from understanding “his need to timely file a habeas petition” and his ability to “effectuate

21 that filing.” ECF No. 33 at 10; see also ECF No. 43 at 3.

22 Under limited circumstances, a petitioner’s mental impairment may represent an

23 extraordinary circumstance warranting equitable tolling for the period he was incompetent. Laws

24 v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003). The Ninth Circuit in Bills determined a two-part

25 test to evaluate whether equitable tolling applies in cases where petitioner suffers from a mental

26 impairment. In Bills, the Ninth Circuit stated, in pertinent part:

27 (1) First, a petitioner must show his mental impairment was an

“extraordinary circumstance” beyond his control, see Holland, 130

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1 S.Ct at 2562, by demonstrating the impairment was so severe that

either

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(a) Petitioner was unable to rationally or factually to

3 personally understand the need to timely file, or

4 (b) Petitioner’s mental state rendered him unable personally

to prepare a habeas petition and effectuate its filing.

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(2) Second, the petitioner must show diligence in pursuing the claims

6 to the extent he could understand them, but that the mental

impairment made it impossible to meet the filing deadline under the

7 totality of the circumstances, including reasonably available access

to assistance. See id.

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9 Bills, 628 F.3d at 1100. “The mental impairment must be so debilitating that it is the but-for

10 cause of the delay, and even in cases of debilitating impairment the petitioner must still

11 demonstrate diligence.” Yow Ming Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014) (citing

12 Bills, 628 F.3d at 1100).

13 Petitioner and respondent provide documentation for petitioner’s medication and

14 treatment notes for the relevant limitations period. However, review of the documentations show

15 that petitioner’s mental impairments were not “so severe” as to prevent petitioner from being able

16 to “rationally or factually to personally understand the need to timely file,” nor render him

17 “unable personally to prepare a habeas petition and effectuate its filing.” Bills, 628 F.3d at 1100.

18 Although treatment notes indicate that petitioner was suffering from paranoia, anxiety, auditory

19 hallucinations, and depression, they also show that petitioner reported having a stable mood (ECF

20 No. 40-1 at 15, 23, 27, 29), being stable on medications (ECF No. 40-1 at 15, 23, 28), and not

21 experiencing side effects in medication (ECF No. 40-1 at 23, 29, 38). Treatment notes further

22 indicate that even when petitioner had stopped or refused to take his medications as prescribed, he

23 would report having a stable mood. ECF No. 40-1 at 15, 27. See also Martinez v. Hedgpeth, No.

24 1:11-cv-01661-DLB HC, 2012 WL 1076260, at *6 (E.D. Cal. Mar. 29, 2012) (citing McCall v.

25 Wyoming Attorney General, 339 Fed. Appx. 848, 850, 2009 WL 1803281, at *2 (10th Cir. 2009)

26 for the proposition that “the mere fact that defendant was under influence of medication

27 insufficient to warrant equitable tolling because he failed to explain how the prescription

28 medication prevented him from bringing his claim.”) Moreover, during the relevant limitations

1 period and after, petitioner reported “no impairment of memory or concentration,” his ability to

2 maintain his interests such as reading, writing, working out. ECF No. 40-1 at 39, 41.

3 Review of the record demonstrates that petitioner has failed to show that his mental

4 impairments were the but-for cause for his delay in filing a timely federal habeas petition. See

5 Taylor v. Knowles, No. CIV S-07-2253 WBS EFB P, 2009 WL 688615, at *6 (E.D. Cal. Mar. 13,

6 2009), aff'd, 368 Fed. Appx. 796 (9th Cir. 2010) (no equitable tolling where petitioner failed to

7 show his auditory hallucinations, severe depression and anxiety “actually caused him not to be

8 able to file despite his diligence”). Further, respondent also provides petitioner’s education record

9 that demonstrates petitioner’s enrollment from December 10, 2012 to April 19, 2013 in the

10 prison’s computer literacy program. ECF No. 40-3 at 1-8. Petitioner successfully completed the

11 program with a “behavior/assessment” marked as satisfactory in “adaptability,” “conduct,”

12 “cooperation,” “dependability,” and “initiative.” Id. at 3-5. Accordingly, the undersigned finds

13 petitioner’s alleged mental impairments do not meet Bills two-part test and accordingly do not

14 persist throughout the relevant limitations period.

15 Because petitioner has not demonstrated an extraordinary circumstance that would entitle

16 him to equitable tolling, the court need not address whether petitioner was diligent in pursuing his

17 rights in relation to each of the grounds raised. Accordingly, the undersigned finds that petitioner

18 has not met his burden of demonstrating the existence of grounds for equitable tolling. See Pace

19 v. DiGuglielmo, 544 U.S. 408, 418 (2005) (petitioner bears the burden of demonstrating grounds

20 for equitable tolling).

21 Evidentiary Hearing

22 Petitioner has failed to meet his burden in establishing that an extraordinary circumstance

23 prevented him from diligently pursuing his rights within the limitations period. The medical

24 records submitted by both the petitioner and respondent do not show that petitioner is entitled to

25 an evidentiary hearing to determine whether his mental impairment warrants equitable tolling.

26 See Laws v. Lamarque, 351 F.3d 919, 920, 924 (9th Cir. 2003) (Further factual development may

27 be required when a petitioner alleges a “good faith allegation that would, if true, entitle him to

28 equitable tolling” when the record is “patently inadequate”); Roy v. Lampert, 465 F.3d 964, 969,

1 975 (9th Cir. 2006) (The district court must hold an evidentiary hearing to determine whether

2 equitable tolling is warranted if petitioner makes “a good-faith allegation that would, if true

3 entitle him to equitable tolling” and there “are only conflicting affidavits in the record regarding

4 the facts underlying the issue of cause.”) Here, on the contrary, the medical records establish that

5 petitioner was sufficiently competent and capable of managing his affairs before, after and during

6 the relevant limitations period. “Where the record is amply developed, and where it indicates that

7 the petitioner's mental incompetence was not so severe as to cause the untimely filing of his

8 habeas petition, a district court is not obligated to hold evidentiary hearings to further develop the

9 factual record, notwithstanding a petitioner's allegations of mental incompetence.” Roberts v.

10 Marshall, 627 F.3d 768, 773 (9th Cir. 2010); see also Orthel v. Yates, 795 F.3d 935, 939-41 (9th

11 Cir. 2015) (When the existing record is “amply developed,” “a district court need not hold

12 evidentiary hearings to further develop the factual record.”) Accordingly, the undersigned finds

13 petitioner is not entitled to an evidentiary hearing.

14 Conclusion

15 For the reasons stated above, the undersigned recommends dismissing petitioner’s habeas

16 petition as untimely and that petitioner is not entitled to equitable tolling.

17 Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must

18 issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A

19 certificate of appealability may issue only “if the applicant has made a substantial showing of the

20 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings

21 and recommendations, a substantial showing of the denial of a constitutional right has not been

22 made in this case.

23 Accordingly, IT IS HEREBY RECOMMENDED that:

24 1. Respondent’s motion to dismiss (ECF No. 9) be granted;

25 2. The petition be dismissed with prejudice for untimeliness; and

26 3. The District Court decline to issue a certificate of appealability.

27 These Findings and Recommendations are submitted to the United States District Judge

28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days

1 after being served with these findings and recommendations, any party may file written

2 objections with the court and serve a copy on all parties. Such a document should be captioned

3 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

4 objections shall be filed and served within fourteen days after service of the objections. The

5 parties are advised that failure to file objections within the specified time may waive the right to

6 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

7 Dated: August 22, 2019

/s/ Gregory G. Hollows

8

UNITED STATES MAGISTRATE JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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