Opinion
No. 2:11-cv-3334 MCE AC P
05-07-2013
SEAN D. CLARK, Petitioner, v. WILLIAM KNIPP, Respondent.
ORDER AND
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner who proceeds pro se and in forma pauperis on his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition, alleging that it is untimely filed. See ECF No. 16. Petitioner opposes the motion to dismiss, and has additionally filed motions for discovery, for an evidentiary hearing, for counsel, and to amend and to supplement his petition. See ECF Nos. 12, 18, 28, 29, 30, 31, 35. For the reasons outlined below, the undersigned recommends that respondent's motion to dismiss the petition as untimely be granted, that petitioner's motions to amend and to supplement be granted in part and denied in part, and that petitioner's remaining motions be denied.
BACKGROUND
On April 15, 1998, petitioner was convicted of felony Second Degree Robbery in violation of Penal Code § 211 after he pled no contest pursuant to a plea agreement. Clerk's Transcript ("CT"), Lod. Doc. No. 16, at 0067-0074. According to the Post Sentence Report, on September 7, 1997, petitioner robbed a store in Oroville. CT 0076. The report reads that petitioner was seen on video from the store's surveillance system, and that petitioner's fingerprints were found from the cash register drawer and counter top. Id.
As part of the plea agreement, the prosecutor agreed not to re-charge petitioner with a previously dismissed charge that petitioner had robbed Donna Walberg at Bar X Liquors on September 9, 1997. CT 0069; Reporter's Transcript ("RT"), Lod. Doc. No. 17, at 11:14-26; ECF No. 20 at 23. The prosecution additionally agreed to dismiss three prior serious felonies alleged in the information. CT 0067, 0069-0075; RT 11:2-7.
Also as part of the agreement, petitioner waived his rights to a probation report and to a later sentencing hearing, and requested that he be sentenced on the day of his plea. CT 0067, 0069-75; RT 11:8-13. Petitioner further admitted two prior strikes, for a robbery committed in 1989 and a robbery committed in 1992. CT 0069. Petitioner agreed not to move to strike the strikes. CT 0069; RT 11:8-13. On April 15, 1998, the court sentenced petitioner to his expected sentence of 25 years to life. CT 0067-68, 0074; RT 22:3-7.
Petitioner filed an appeal with the state Court of Appeal, Third Appellate District, which he subsequently abandoned. Lod. Doc. No. 2. The state Court of Appeal dismissed the appeal on August 12, 1998. Lod. Doc. No. 3.
On July 21, 1999, petitioner filed a habeas petition with the state Superior Court, arguing that his three strikes sentence violated the Ex Post Facto Clause, the Fourteenth Amendment's due process clause, and his plea agreement. Lod. Doc. No. 4 ("First State Petition"). On August 27, 1999, the state Superior Court denied the petition finding it was without legal merit. Lod. Doc. No. 5.
On August 21, 2011, nearly twelve years after denial of the First State Petition, petitioner filed a second habeas petition with the state Superior Court. Lod. Doc. No. 6 ("Second State Petition"). In the Second State Petition, petitioner argued that his Fifth, Sixth, and Fourteenth Amendment rights were violated when the prosecutor used "illegal means to induce petitioners [sic] plea bargain by threatening to refile charge on petitioner for which prosecution did not have probable cause to file. Depriving Petitioner of Due Process." Lod. Doc. No. 6 at 7.
In essence, petitioner alleges that the prosecutor withheld exculpatory evidence from petitioner, because the prosecutor failed to advise petitioner that someone named Timmy Dean Osby had been indicted on February 4, 1998 for a robbery at the Bar X Liquor Store. Lod. Doc. No. 6 at 8-9. Petitioner claims that, even though Mr. Osby was convicted for the robbery on March 25, 1998, the prosecution later used "that very same charge" against petitioner in order to induce his plea bargain. Id. Petitioner argues that the prosecutor would have had no probable cause to refile any charges against petitioner in connection for petitioner's alleged robbery of the Bar X, and so his plea was induced by false information, and was coerced, rendering the plea involuntary and invalid. Id. at 12.
Petitioner does not provide the date of the robbery for which Mr. Osby was convicted. According to the transcript of Mr. Osby's preliminary hearing, which occurred on January 21, 1998, Mr. Osby robbed the Bar X Liquor store on January 2, 1998. Lod. Doc. 18 at 4:15-7:4. Donna Walberg was the testifying witness at the preliminary hearing, and had been Mr. Osby's girlfriend. Id. at 2:23-3:4. Ms. Walberg also testified that the store had previously been robbed by someone she did not know. Id. at 8:19-8:23. Ms. Walberg had identified petitioner as the person who had robbed her on September 9, 1997 (ECF No. 30 at 12, 14), but she could not identify the petitioner in a photo line up (id. at 10).
Petitioner additionally argued that he received ineffective assistance of counsel because counsel failed to conduct a reasonable investigation of the Bar X Liquor robbery. Id. at 19.
On September 9, 2011, the Superior Court denied the Second State Petition, finding that "[t]he facts alleged in the petition, if true, fail to establish a prima facie case for relief," citing In re Duvall, 9 Cal.4th 464, 474-75 (1995). Lod. Doc. No. 7 at 1. The Superior Court further found that "[p]etitioner has failed to support that newly discovered evidence casts a fundamental doubt on the accuracy and reliability of the proceedings, and which if such evidence is credible, 'would undermine the entire prosecution case and point unerringly to innocence or reduced culpability," citing People v. Gonzalez, 51 Cal.3d 1179, 1246 (1990). Id. at 3.
On September 27, 2011, petitioner filed a petition for writ of error coram vobis in the state Court of Appeal. Lod. Doc. No. 8 ("Third State Petition"). Petitioner raised in the Third State Petition the same arguments he raised in his Second State Petition, adding that he only learned this "newly discovered information" about Mr. Osby's conviction from Mr. Osby himself in 2010. Lod. Doc. No. 8 at 13, 46.
On October 6, 2011, the Court of Appeal denied the Third State Petition without reference to any authority. Lod. Doc. No. 9.
On October 11, 2011, petitioner filed with the state Supreme Court a "Petition for Review to Exhaust State Remedies from the Unpublished Decision of the Third District Court of Appeal, Division One, Affirming a Criminal Conviction." Lod. Doc. No. 10 ("Fourth State Petition"). In the body of the Fourth State Petition, petitioner stated that the petition was filed solely to exhaust state remedies to permit the petitioner to seek federal habeas corpus relief. Id. at 4.
On October 19, 2011, petitioner filed with the state Court of Appeal a Petition for Writ of Habeas Corpus. Lod. Doc. No. 12 ("Fifth State Petition"). Petitioner again raised the issue that his plea was coerced, and also that he received ineffective assistance of counsel. He stated that he had a coram vobis petition for review pending with the state Supreme Court but that he could not raise in that petition his ineffective assistance of counsel claim. Lod. Doc. No. 12 at 6.
On October 27, 2011, the state Court of Appeal denied the Fifth State Petition without citation to any authority. Lod. Doc. No. 13.
On November 16, 2011, the state Supreme Court denied the Fourth States Petition without citation to any authority. Lod. Doc. No. 11.
On November 8, 2011, petitioner filed a petition for review with the state Supreme Court seeking to exhaust his state remedies with regard to the Fifth State Petition. Lod. Doc. No. 14 ("Sixth State Petition").
On December 13, 2011, petitioner filed his current federal habeas petition. ECF No. 1.
On January 4, 2012, the state Supreme Court denied the Sixth State Petition without citation to any authority. Lod. Doc. No. 15.
On January 18, 2012, this court ordered petitioner to show cause why the petition should not be dismissed as untimely. ECF No. 7. Petitioner's response, filed February 2, 2012, appears to allege that petitioner is entitled to equitable tolling, or to a delayed trigger date under 28 U.S.C. § 2244(d)(1)(D):
when the Butte County Prosecutor withheld the fact that Timmy Dean Osby had already been convicted of the Bar-X-Liquor store crime that is in question here, there was no timely way for the petitioner to obtain this above information to exercise due diligence to file this claim before now. The petitioner received this newly discovered information in 2010 by sheer luck or coincidence from Mr. Timmy Dean Osby himself, and if that had not happen, the petitioner still to this very day would not have known that Mr. Timmy Dean Osby, had already been held responsible for, and convicted of the very same crime the Bar-X-Liquor store robbery that was later used by the Butte County Prosecutor to induce the Petitioners [sic] plea on 4-15-1998.ECF No. 8 at 2.
Petitioner further claims that he is actually innocent of the Bar-X Liquor store robbery, and that the prosecution committed a "Brady violation" by withholding from petitioner information that Mr. Osby had been convicted for the robbery. Id. at 5, 8.
On February 7, 2012, the court discharged the order to show cause, and directed respondent to file a response to the petition. ECF No. 9. On April 6, 2012, respondent filed a motion to dismiss the petition as untimely. ECF No. 16. Petitioner has filed opposition to the motion (ECF No. 27), as well as motions for discovery (ECF Nos. 12, 18), to appoint counsel (ECF No. 28), for an evidentiary hearing (ECF No. 29), and to expand the record and to supplement the petition (ECF Nos. 30, 31, 35). Respondent has replied to petitioner's opposition (ECF Nos. 23, 25), and the motion to dismiss is now submitted.
Respondent moved for an extension of time to file his reply and a review of the docket reflects that the motion was never adjudicated. Respondent filed his reply within the time requested in the motion. The extension motion (ECF No. 23) should be granted, and the reply deemed timely filed.
RELEVANT AUTHORITY
Timeliness
28 U.S.C. § 2244(d)(1) sets forth the relevant statute of limitations:
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 judgement of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
In most cases, the limitations period begins running on the date that the petitioner's direct review becomes final, pursuant to subsection (d)(1)(A). In such cases, a federal petition for writ of habeas corpus ordinarily must be filed within one year after the state court judgment becomes final by the conclusion of direct review or the expiration of time to seek direct review. E.g., Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010).
In this case, petitioner appears to ask the court to measure the statute of limitations under 28 U.S.C. § 2244(d)(1)(D), or from some time in 2010 when petitioner became aware "through sheer luck or coincidence" that Mr. Osby had been indicted and convicted of robbing the Bar Z Liquor store.
Statutory Tolling
The time during which a "properly filed" application for state post-conviction or collateral review (including California habeas proceedings) is pending does not count toward this one-year period. 28 U.S.C. § 2244(d)(2); Porter v. Ollison, 620 F.3d at 958. However, a petition filed after the expiration of the statute of limitations has no effect on the timeliness analysis. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) (state petition filed after expiration of § 2244 period cannot resuscitate expired period); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003).
An application is "properly filed" when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000). Untimely petitions are not properly filed. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (where state court rejects petition as untimely, it was not "properly filed" and petitioner is not entitled to statutory tolling); Carey v. Saffold, 536 U.S. 214, 225-26 (2002) (if state court rules that petition is untimely, that is "the end of the matter," regardless of whether state court also addressed merits of the claims, or whether timeliness ruling was "entangled" with the merits).
Additional tolling rules apply when a petitioner files two sets of state habeas petitions. Where a petitioner elects to begin a second round of petitions in the Superior Court before completing a full round of review through the highest available state court, petitioner may be entitled to interval tolling between the first and second Superior Court petitions if the second petition is timely, and "the successive petition was attempting to correct deficiencies of a prior petition," because the petitioner "is still making proper use of state court procedures and habeas review is still pending." See Banjo v. Ayers, 614 F.3d 964, 968-69 (9th Cir. 2010). A second round of properly filed California habeas petitions may also toll the § 2244(d)(1) period if the second is filed before the federal deadline expires; however, a second round will not toll the AEDPA deadline if the second petition is "untimely or an improper successive petition." See id., citing Townsend v. Knowles, 562 F.3d 1200, 1205 (9th Cir.), cert. denied, 130 S. Ct 193 (2009) (untimely state court petition not properly filed).
Under California state law, a successive petition presenting additional claims that could have been presented in an earlier collateral petition is, of necessity, a "delayed petition." See In re Clark, 5 Cal. 4th 750, 770 (Cal. 1993).
There is no California rule which prohibits the filing of a successive petition, though such a petition may be procedurally barred. Cf. 28 U.S.C. § 2244(a), (b) (petitioner seeking to file successive petition in federal district court must first obtain authorization from the Court of Appeals) with Cal. Rules of Court R. 4.551 and Cal. Penal Code § 1474.
Equitable Tolling
A habeas petitioner is entitled to equitable tolling of AEDPA's one-year statute of limitations only if the petitioner shows: (1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstances stood in his way and prevented timely filing. See Holland v. Florida, __U.S. _, 130 S.Ct. 2549, 2562 (2010); Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). The diligence required for equitable tolling purposes is "reasonable diligence," not "maximum feasible diligence." See Holland, 130 S.Ct. at 2565; see also Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir. 2010).
As to the extraordinary circumstances required, the Ninth Circuit has held that the circumstances alleged must make it impossible to file a petition on time, and that the extraordinary circumstances must be the cause of the petitioner's untimeliness. See Bills, 628 F.3d at 1097, citing Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). This is a very high threshold, "lest the exceptions swallow the rule." See Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.), cert. denied, 537 U.S. 1003 (2002).
For example, the Ninth Circuit has found that a prisoner's lack of access to his legal file may warrant equitable tolling, but that "ordinary prison limitations on [petitioner's] lack of access to the law library and copier (quite unlike the denial altogether of access to his personal legal papers) were neither 'extraordinary' nor made it 'impossible' for him to file his petition in a timely manner." Ramirez, 571 F.3d at 998 (prisoner not entitled to equitable tolling for time in administrative segregation when he had only limited access to law library and copier).
Actual Innocence
The Ninth Circuit has recently determined that the "actual innocence" exception applies to AEDPA's statute of limitations. See Lee v. Lampert, 653 F.3d 929, 934 (9th Cir. 2011) (en banc). "[A] credible claim of actual innocence constitutes an equitable exception to AEDPA's limitations period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits." Id. at 932.
In order to present otherwise time-barred claims to a federal habeas court under Schlup [v. Delo, 513 U.S. 298, 115 S.Ct. 851 (1995)], a petitioner must produce sufficient proof of his actual innocence to bring him "within the 'narrow class of cases...implicating a fundamental miscarriage of justice.'" 513 U.S. at 314-15, 115 S.Ct. 851 (quoting McCleskey [v. Zant, 499 U.S. 467 (1991)], at 494, 111 S.Ct. 1454). The evidence of innocence must be "so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error." Id. at 316, 115 S.Ct. 851.Lee v. Lambert, 653 F.3d at 937-38 (emphasis added).
To pass through the Schlup gateway, a "petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence....Schlup requires a petitioner "to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.
ANALYSIS
The Petition is Untimely
Petitioner argues that he is entitled to a later commencement date of his statute of limitations, because he did not become aware until 2010 that the prosecution in his case had withheld evidence from him, resulting in a coerced plea. This argument fails for two reasons.
First, under 28 U.S.C. § 2244(d)(1)(D), the operative date for the start of the limitations period is "the date on which the factual predicate of the claim . . . could have been discovered through the exercise of due diligence." In this case, the factual predicate of petitioner's claim - that he is actually innocent of the Bar X Liquor robbery - would have been known to petitioner in 1997 and 1998, when he was charged with the Bar X robbery, at the time the Bar X robbery charges were dropped, and at the time he entered into the plea deal. Petitioner is not entitled to measure the deadline from the date when he became aware of the potential legal significance of the fact that someone else was convicted of robbing the same liquor store. See Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001), citing Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) ("Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance.")
Second, even if Osby's recently-discovered conviction for robbing Bar X were deemed the factual predicate for a claim that the prosecution suppressed evidence in order to coerce a plea, petitioner's theory would necessarily fail. Petitioner has failed to allege or to establish that Mr. Osby was convicted for robbing the Bar X Liquor store on September 9, 1997, the date on which petitioner was alleged to have robbed the store. Instead, the record reflects that Mr. Osby robbed the Bar X Liquor store on January 2, 1998. The record also reflects that the Bar X Liquor store had been robbed before December 31, 1997, by an unidentified perpetrator. That Mr. Osby was convicted for robbing a store in January, 1998 is consequently of no importance to petitioner's plea agreement, and the prosecutor would have been under no obligation to advise petitioner or petitioner's counsel of the indictment and conviction. Cf., e.g., Bousley v. U.S., 523 U.S. 614 (1998) (habeas petitioner alleged that he was "actually innocent" of crime to which he pled guilty); Schlup v. Delo, 513 U.S. 298 (1995) (habeas petitioner claimed to be actually innocent of the crime for which he was convicted and sentenced).
The record reflects that petitioner was in the Butte County Jail from October 14, 1997 through April 15, 1998. ECF No. 20 at 27.
The court additionally notes that petitioner never identifies the date on which he became aware of Mr. Osby's conviction, or the circumstances of that discovery. Instead, petitioner only tells the court that sometime in 2010, through sheer luck, he found out that someone named Timmy Dean Osby had been indicted and convicted of robbing the Bar X Liquor store. Absent such basic information about petitioner's acquisition of his information about Mr. Osby's conviction, the court is unable to determine whether petitioner acted with appropriate diligence to warrant a belated commencement date. Cf. Holland, 130 S.Ct. at 2555 (describing efforts of capital prisoner to communicate with attorney during collateral review period). However, because the record establishes that Osby's conviction involved a different robbery than the one used as a bargaining chip in petitioner's plea negotiations, there is no reason to conduct further proceedings regarding petitioner's diligence.
Petitioner is not entitled to measure the statute of limitations from his discovery of Osby's conviction. The court will accordingly measure the statute of limitations under 28 U.S.C. § 2244(d)(1)(A), the date on which the underlying conviction became final.
Petitioner was sentenced on April 15, 1998. Petitioner abandoned his appeal, which was dismissed on August 12, 1998. Under state procedural rules, the time for filing a petition for review expired ten days later, on August 22, 1998. See Rule 8.500 (formerly Rule 28), Cal. Rules of Court. The one year limitations period under 28 U.S.C. § 2244(d)(1)(A) accordingly began the next day, August 23, 1998. Petitioner's federal habeas petition was due within one year, or by August 23, 1999. Petitioner did not file his petition until December 13, 2011, more than twelve years later, and so the federal petition is untimely unless petitioner qualifies for tolling of the deadline.
Petitioner is Entitled to Thirty-Eight Days of Statutory Tolling
Petitioner is entitled to statutory tolling for the thirty-eight days in the period July 21, 1999, through August 27, 1999, when his First State Petition was pending. Petitioner's federal petition was therefore due on or before September 30, 1999.
Petitioner is not entitled to statutory tolling for any subsequently filed petitions, as the Second through Sixth State Petitions were filed after September 30, 1999, and do not resuscitate the expired limitations period. See Ferguson, 321 F.3d at 823.
Petitioner is Not Entitled to Equitable Tolling
To the extent petitioner seeks equitable tolling because he discovered in 2010 that another person was indicted and convicted for a robbery at the Bar X Liquor store, which robbery he claims the prosecutor wrongfully used to coerce his plea agreement, petitioner's argument must fail for the reasons cited above.
Finally, petitioner is not entitled to an "actual innocence" exception to the timeliness requirement under Lee v. Lambert, because he does not allege that he is actually innocent of the crime of which he was convicted - the September 7, 1997 robbery of an unspecified store in Oroville. Petitioner's claim that he is "actually innocent" of the Bar X Liquor robbery (whether it occurred on September 9, 1997 or on January 2, 1998) would be relevant only if petitioner had been convicted of the Bar X Liquor robbery. As noted above, petitioner fails to allege that the robbery for which another man was convicted is in fact the same robbery with which petitioner had been originally charged. The record before this court indicates otherwise.
PETITIONER'S MOTIONS
Petitioner has moved for the appointment of counsel, for an evidentiary hearing, and to supplement the record.
Petitioner has moved for discovery of documents related to Mr. Osby's conviction (ECF Nos. 12, 18). As noted above, Mr. Osby's conviction is irrelevant to this court's determination of petitioner's challenge to the conviction that petitioner has actually sustained. In addition, respondent has provided the court, and the petitioner, with a transcript from the preliminary hearing for Mr. Osby. See Lod. Doc. No. 18. A review of this transcript reflects that no further discovery is necessary, as the crime for which Mr. Osby was indicted and convicted took place on a different date from the robbery that petitioner allegedly committed. This motion will be denied.
In his motions to supplement the record and the petition (ECF Nos. 30, 31), petitioner alleges that he has recently received information that on October 16, 1997, the clerk at Bar X Liquors had been unable to identify him in a photo lineup. Both motions attach the same documents as exhibits. The court will permit petitioner to expand the record with this evidence, although the information is not relevant and does not change the recommendation that the motion to dismiss be granted. Because the latter-filed Motion to Amend the Supplemental Lodging (ECF No. 31) supercedes the previously-filed Motion for Supplemental Lodging (ECF No. 30), petitioner's initial request will be denied as moot and the amended request will be granted insofar as it seeks expansion of the record with the attached exhibits.
The "Motion for Expansion of the Record," filed December 18, 2012 (ECF No. 35) will be denied, as the attached exhibits are already in the record. The accompanying memorandum appears to offer new theories for relief , but all of these theories involve petitioner's alleged actual and factual innocence of the Bar X Liquor robbery. For the reasons previously explained, these new theories are without merit on a collateral challenge to petitioner's actual conviction.
Exhibits A appears in the Clerk's Transcript; Exhibits B and C were a part of petitioner's Second State Petition, appearing in the record at Lodged Document No. 6; and Exhibits D and E were attached to petitioner's Motion for Supplemental Lodging and Motion to Amend the Supplemental Lodging.
Petitioner's motion to appoint counsel (ECF No. 28) will be denied. As described above, this petition is untimely and does not qualify for tolling sufficient to render it otherwise. Moreover, petitioner has failed to present colorable grounds for relief. While 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case "if the interests of justice so require," see Rule 8(c), Fed. R. Governing § 2254 Cases, the undersigned does not find that the interests of justice would be served by the appointment of counsel at the present time.
Petitioner's motion for an evidentiary hearing (ECF No. 29) should be denied. Petitioner moved for a hearing in order to resolve disputed facts surrounding the Bar X Liquor robberies, facts which the undersigned has determined not to be relevant to a determination of whether petitioner is entitled to relief on this petition. The fact necessary to the undersigned's determination - namely, when petitioner's conviction became final, and when he filed his various petitions - are not in dispute, and are capable of resolution on the record.
The undersigned notes that petitioner subsequently moved to supplement the record under Rule 7, in order to provide the court with a full record and to obviate the need for a hearing. See ECF No. 35 at 2-3.
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CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings and recommendations, a substantial showing of the denial of a constitutional right has not been made in this case.
Accordingly, IT IS HEREBY ORDERED that:
1. The motions for discovery (ECF Nos. 12, 18) are denied;
2. The motion to appoint counsel (ECF No. 28) is denied;
3. The Motion for Supplemental Lodging (ECF No. 30) is denied as moot;
4. The Motion to Amend the Supplemental Lodging (ECF No. 31) is
construed as a motion to expand the record with Exhibits A through D, and as such is granted;
5. The motion for an extension of time (ECF No. 23) is granted, and respondent's opposition to petitioner's motion(s), filed June 25, 2012 (ECF No. 25), is deemed timely.
Furthermore, IT IS HEREBY RECOMMENDED that:
1. The motion to dismiss (ECF No. 16) be granted;
2. The motion for an evidentiary hearing (ECF No. 29) be denied;
3. The District Court decline to issue a certificate of appealability.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-eight (28) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within twenty-eight (28) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE