1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DASHAUN NELLUM, Case No. 22-cv-04735-JSW

8 Plaintiff, ORDER OF DISMISSAL v. 9 Re: Dkt. No. 2, 3 10 PATRICK COVELLO, Defendant. 11

12 INTRODUCTION 13 Petitioner, a prisoner of the State of California proceeding pro se, filed a petition for a writ 14 of habeas corpus under

challenging his state court conviction. Because the 15 petition is clearly untimely on its face, it is DISMSISED. Petitioner is also GRANTED leave to 16 proceed in forma pauperis. 17 DISCUSSION 18 I. Standard of Review 19 This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in 20 custody pursuant to the judgment of a State court only on the ground that he is in custody in 21 violation of the Constitution or laws or treaties of the United States.”

(a). It 22 shall “award the writ or issue an order directing the respondent to show cause why the writ should 23 not be granted, unless it appears from the application that the applicant or person detained is not 24 entitled thereto.”

§ 2243. 25 II. Legal Claims 26 Petitioner was sentenced to a term of 25-years-to-life sentenced on March 17, 2000. (ECF 27 No. 1 at 1.) He indicates that his direct appeal was denied by the California Supreme Court in 1 further states that he filed no other post-conviction petitions in the state courts, but that he 2 currently has post-conviction proceedings pending in the California Court of Appeal and the 3 California Supreme Court. (Id.) The instant petition can be deemed filed at the earliest on the 4 date it was signed: July 20, 2022. (Id. at 6.) 5 Petitions filed by prisoners challenging noncapital state convictions or sentences must be 6 filed within one year of the latest of the date on which: (A) the judgment became final after the 7 conclusion of direct review or the time passed for seeking direct review; (B) an impediment to 8 filing an application created by unconstitutional state action was removed, if such action prevented 9 petitioner from filing; (C) the constitutional right asserted was recognized by the Supreme Court, 10 if the right was newly recognized by the Supreme Court and made retroactive to cases on 11 collateral review; or (D) the factual predicate of the claim could have been discovered through the 12 exercise of due diligence.

(d)(1). There are no allegations indicating that 13 grounds (B) – (D) have any applicability to this case. Under section 2244(d)(1)(A), the judgment 14 became final in 2006, when his final direct appeal was denied, or, at the latest, in early 2007, when 15 the time for seeking direct review of his final appeal expired. Thus, the instant petition was filed 16 at least 15 years after the statute of limitations expired. As Petitioner did not file a habeas petition 17 in the state courts before the limitations period expired, there is no grounds for tolling under 28

(d)(2) (providing that the running of the limitations is tolled while any habeas 19 petitions are pending in the state courts). See Ferguson v. Palmateer,

(9th Cir. 20 2003) (state habeas petition filed after AEDPA's statute of limitations ended cannot toll the 21 limitations period). No grounds for equitable tolling are asserted or apparent in the petition. 22 Petitioner states in conclusory fashion that the petition must be granted to avoid “a 23 miscarriage of justice.” (ECF No. 1 at 36.) The Supreme Court limits the "miscarriage of justice" 24 exception to habeas petitioners who can show that "a constitutional violation has probably resulted 25 in the conviction of one who is actually innocent." Schlup v. Delo,

(1995). 26 This requires the petitioner to show "by clear and convincing evidence that but for constitutional 27 error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 1 innocence, rather he makes several claims that he is legally entitled to habeas relief. Such 2 arguments do not amount to a miscarriage of justice exception to the limitations period. There is 3 no indication, moreover, that Petitioner’s claims could not have been made within the limitations 4 || period. 5 CONCLUSION 6 For the foregoing reasons and for good cause shown, the instant petition is untimely and 7 || must be DISMISSED. Petitioner shall disregard the deficiency notice regarding his application to 8 || proceed in forma pauperis (ECF No. 3); leave to proceed in forma pauperis is GRANTED. 9 The Clerk shall enter judgment and close the file. 10 IT IS SO ORDERED. 11 Dated: August 22, 2022 g 2 CL White 13 L4G | _¢ 14 /jiaipal Stat istrict Judge 1s 16

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