REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Philip S. Gutierrez, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on May 7, 2015, bearing a signature and service date of April 28, 2015. Respondent filed a "Motion to Dismiss Petition, etc." ("Motion to Dismiss") on September 2, 2015, asserting that the Petition is untimely. Petitioner filed "Petitioner[`s] Opposition, etc." on October 5, 2015 ("Opposition"). Also on October 5, 2015, Petitioner filed "Petitioner's Motion for Martinez/Thaler EVIDENTIARY HEARING REQUESTED," apparently seeking an evidentiary hearing and/or a stay of the Petition pursuant to Rhines v. Weber, 544 U.S. 269 (2005).

BACKGROUND

A Superior Court jury found Petitioner guilty of assault with a firearm, attempted wilful, deliberate and premeditated murder, and possession of a firearm by a felon (Respondent's Lodgment 1, ECF Dkt. 17-1, pp. 2-5, 7-9). The jury found true various firearm enhancements (Respondent's Lodgment 1, ECF Dkt. 17-1, pp. 2-5, 7-9). Petitioner received a sentence of thirty-five years to life (Respondent's Lodgment 2).

The California Court of Appeal affirmed the conviction but remanded for resentencing (Respondent's Lodgment 3; see People v. Landrum, 2012 WL 2393094 (Cal. App. June 26, 2012)). Petitioner did not file a petition for review in the California Supreme Court (Petition, p. 3). On October 22, 2012, the Superior Court resentenced Petitioner to an indeterminate term of thirty-two years to life and a determinate term of three years and eight months (Respondent's Lodgment 4). Petitioner did not appeal from the judgment following resentencing.1

On March 7, 2013, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, bearing a signature date of February 27, 2013 (Respondent's Lodgment 5). The Superior Court denied the petition in a written order on March 11, 2013 (Respondent's Lodgment 6).

On April 4, 2013, Petitioner filed a habeas corpus petition in the Court of Appeal, bearing a signature and service date of March 27, 2013 (Respondent's Lodgment 7). The Court of Appeal denied the petition summarily on April 15, 2013 (Respondent's Lodgment 8).

On May 31, 2013, the Superior Court "received" from Petitioner a "Motion to Vacate or Set-Aside an Unauthorized Sentence," bearing a service date of May 27, 2013 (Respondent's Lodgment 9). The Superior Court denied the motion on August 5, 2013 (Respondent's Lodgment 10).

On August 16, 2013, Petitioner filed a petition for recall of sentence in the Superior Court (Respondent's Lodgment 11). The Superior Court denied the petition on August 19, 2013 (Respondent's Lodgment 11).

On September 2, 2013, Petitioner served on the Superior Court a "Motion for Order Nunc Pro Tunc, etc." (Respondent's Lodgment 12).2 The Superior Court denied the motion on October 9, 2013 (Respondent's Lodgment 13).

On January 13, 2014, Petitioner filed a "Motion for Order Nunc Pro Tunc" in the Court of Appeal, bearing a signature and service date of January 5, 2014 (Respondent's Lodgment 14). The Court of Appeal treated the motion as a petition for habeas corpus and denied the petition summarily on April 21, 2014 (Respondent's Lodgment 15).

On August 13, 2014, the Superior Court "received" from Petitioner a "Motion to Recall Sentence, etc.," bearing a signature and service date of August 10, 2014 (Respondent's Lodgment 16). The Superior Court denied the motion on September 2, 2014 (Respondent's Lodgment 17).

On December 4, 2014, Petitioner filed a habeas corpus petition in the California Supreme Court, bearing a signature and service date of November 30, 2014 (Respondent's Lodgment 18). The California Supreme Court denied the petition summarily on February 18, 2015 (Respondent's Lodgment 19).

In the meantime, on December 10, 2014, Petitioner filed a "Petition for Writ Mandate/Prohibition in the Court of Appeal," bearing a signature and service date of December 7, 2014 (Respondent's Lodgment 20). The Court of Appeal denied the petition summarily on December 15, 2014 (Respondent's Lodgment 21). On December 29, 2014, Petitioner filed a petition for review of the Court of Appeal's denial of Petitioner's Petition for Writ Mandate/Prohibition (Respondent's Lodgment 22). The California Supreme Court denied this petition for review summarily on February 11, 2015 (Respondent's Lodgment 23).

FACTUAL BACKGROUND

The following summary is taken from the opinion of the California Court of Appeal in People v. Landrum, 2012 WL 2393094 (Cal. App. June 26, 2012). See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state court decision).

(Respondent's Lodgment 3, ECF Dkt. 17-3, pp. 3-4; People v. Landrum, 2012 WL 2393094, at *1).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. The prosecutor allegedly committed misconduct by assertedly: (a) using peremptory challenges to strike prospective jurors on account of race; (b) making an improper opening statement and crying in front of the jury; (c) failing to correct witnesses' allegedly inconsistent testimony; (d) failing to disclose a "deal" assertedly given to a prosecution witness in exchange for the witness' testimony; and (e) withholding evidence of Boardley's prior criminal record and preventing the defense from questioning Boardley about his criminal record (Grounds One, Three, Four, Five and Six);

2. Petitioner's trial counsel allegedly rendered ineffective assistance by assertedly: (a) telling the jury Petitioner was in custody; (b) failing to investigate and subpoena "key defense witnesses"; (c) failing to file a "Batson/Wheeler" motion3 challenging the prosecution's allegedly discriminatory use of peremptory strikes; (d) failing to consult with a ballistics expert prior to trial; (e) failing to seek a change of venue; (f) failing to present mitigation evidence at sentencing; and (g) telling jurors in closing argument that Petitioner was "guilty" (Grounds Seven, Eight, Nine, Ten, Eleven, Fourteen, Sixteen);

3. The trial court allegedly abused its discretion by denying Petitioner's motion for a mistrial after the prosecutor's assertedly improper comment on Petitioner's criminal history (Ground Twelve);

4. The trial court allegedly abused its discretion by denying Petitioner's Marsden motion4 (Ground Fifteen);

5. The trial court allegedly abused its discretion by refusing to give lesser included offense instructions (Ground Seventeen);

6. Media coverage of the trial allegedly prejudiced Petitioner (Ground Eleven(B));

7. Petitioner's sentence allegedly violated the Eighth Amendment because: (a) the sentence assertedly was disproportionate; and (b) the imposition of a firearm enhancement pursuant to California Penal Code section 12022.53(d) allegedly was unconstitutional (Grounds Eleven(A), Nineteen);

8. The Court of Appeal allegedly abused its discretion by denying Petitioner's Marsden motion on appeal (Ground Thirteen);

9. Petitioner's appellate counsel allegedly rendered ineffective assistance by failing to raise various supposed trial errors on appeal (Ground Two); and

10. Cumulative error allegedly denied Petitioner a fair trial (Ground Eighteen).

DISCUSSION

I. The Petition Is Untimely.

The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners:

"AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis." Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).

Because Petitioner did not appeal following his October 22, 2012 resentencing, Petitioner's conviction became final sixty days later, on December 21, 2012. See Burton v. Stewart, 549 U.S. 147, 156-57 (2007) (AEDPA's limitations period begins to run after entry of an amended judgment following resentencing); see also Villaneda v. Tilton, 432 Fed. App'x 695, 695 (9th Cir. 2011); Martinez v. Hedgephed, 2012 WL 4868205, at *2 (C.D. Cal. Oct. 15, 2012); Cooper v. Harrington, 2010 WL 1644508, at *3 (E.D. Cal. Apr.21, 2010) ("Where, as here, the California Court of Appeal remands a case to the Superior Court to issue an amended judgment to reflect the appellate court's opinion, the petitioner's conviction becomes final for purposes of federal habeas review upon conclusion of direct review of the amended judgment or upon expiration of time for seeking such review."); Cal. Ct. R. 8.308(a) (notice of appeal must be filed within 60 days after the judgment or order being appealed). Accordingly, the statute of limitations began running on December 22, 2012, unless subsections B, C or D of 28 U.S.C. section 2244(d)(1) apply in the present case. See 28 U.S.C. § 2244(d)(1)(A).

A. No Delayed Accrual

1. Subsection 2244(D)(1)(B)

To warrant delayed accrual on account of an "impediment . . . created by State action" within the meaning of subsection (d)(1)(B), a petitioner must show a causal connection between the impediment and his or her failure to file a timely petition. Bryant v. Arizona Atty. General, 499 F.3d 1056, 1059-60 (9th Cir. 2007) (citations omitted). A petitioner "must satisfy a far higher bar than that for equitable tolling." Ramirez v. Yates, 571 F.3d 993, 1000 (9th Cir. 2009). A petitioner is entitled to delayed accrual under subsection (d)(1)(B) only if the impediment "altogether prevented him from presenting his claims in any form, to any court." Id. at 1001 (emphasis original; citation omitted).

Petitioner contends the Court of Appeal's denial of Petitioner's 2011 motion to substitute appellate counsel during the pendency of Petitioner's appeal prevented Petitioner from pursuing a "meaningful appeal" and "created an impediment" (Opposition, ECF Dkt. 21, p. 14).5 Petitioner does not explain (and no reason appears why) the Court of Appeal's 2011 refusal to permit Petitioner to substitute appellate counsel could have prevented Petitioner from filing a timely federal petition following December 21, 2012, the date Petitioner's conviction became final. The 2011 denial of Petitioner's request to substitute counsel plainly did not "altogether prevent[] [Petitioner] from presenting his claims in any form, to any court." See Ramirez v. Yates, 571 F.3d at 1001. Petitioner is not entitled to delayed accrual under subsection 2244(d)(1)(B).

2. Subsection 2244(d)(1)(C)

Subsection C of section 2244(d)(1) is also inapplicable. Petitioner does not assert any claim based on a constitutional right "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." See Dodd v. United States, 545 U.S. 353, 360 (2005) (construing identical language in section 2255 as expressing "clear" congressional intent that delayed accrual inapplicable unless the United States Supreme Court itself has made the new rule retroactive); Tyler v. Cain, 533 U.S. 656, 664-68 (2001) (for purposes of second or successive motions under 28 U.S.C. section 2255, a new rule is made retroactive to cases on collateral review only if the Supreme Court itself holds the new rule to be retroactive); Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002), cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity principles of Teague v. Lane, 489 U.S. 288 (1989), to analysis of delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)).

3. Subsection 2244(d)(1)(D)

Subsection D of section 2244(d)(1) is also inapplicable. Under subsection D, the "`due diligence' clock starts ticking when a person knows or through diligence could discover the vital facts, regardless of when their legal significance is actually discovered." Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir.), cert. denied, 133 S.Ct. 769 (2012); Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001); see also United States v. Pollard, 416 F.3d 48, 55 (D.C. Cir. 2005), cert. denied, 547 U.S. 1021 (2006) (habeas petitioner's alleged "ignorance of the law until an illuminating conversation with an attorney or fellow prisoner" does not satisfy the requirements of section 2244(d)(1)(D)). Petitioner does not argue, and the record does not show, that Petitioner is entitled to delayed accrual under this subsection. Petitioner knew or should have known no later than the conclusion of trial, the "vital facts" concerning his claims of trial error. Petitioner knew or should have known, no later than the date of sentencing, the "vital facts" concerning his claims of sentencing error. Petitioner knew or should have known, no later than the conclusion of Petitioner's appeal, the "vital facts" concerning his claims of ineffective assistance of appellate counsel, error in denying Petitioner's motion to substitute appellate counsel and cumulative error. Subsection 2244(d)(1)(D) does not provide a later accrual date than December 21, 2012.

Accordingly, the AEDPA statute of limitations began running on December 22, 2012 and, absent tolling or an equitable exception, expired on December 21, 2013. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner constructively filed the present Petition on April 28, 2015.6 Absent sufficient tolling, or an equitable exception to the statute of limitations, the Petition is untimely.

B. Insufficient Statutory Tolling

Section 2244(d)(2) tolls the statute of limitations during the pendency of "a properly filed application for State post-conviction or other collateral review." The statute of limitations is not tolled between the conviction's finality and the filing of Petitioner's first state habeas petition. See Porter v. Ollison, 620 F.3d at 958; Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000).

Here, the statute ran for 67 days from December 22, 2012, to the date Petitioner constructively filed his Superior Court habeas petition, February 27, 2013. The statute then was tolled during the pendency of that petition, until March 11, 2013. As of that date, 298 days remained in the limitations period.

Petitioner next constructively filed his Court of Appeal habeas petition on March 27, 2013. In certain circumstances, a habeas petitioner may be entitled to "gap tolling" between the denial of a state habeas petition and the filing of a "properly filed" habeas petition in a higher state court. See Carey v. Saffold, 536 U.S. 214, 219-221 (2002). However, an untimely state application for post-conviction relief is not a "properly filed" petition for purposes of statutory tolling under section 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408, 412-13 (2005); Carey v. Saffold, 536 U.S. at 225 (California state habeas petition filed after unreasonable delay not "pending" for purposes of section 2244(d)(2)); see also Evans v. Chavis, 546 U.S. 189, 191 (2006) ("The time that an application for state postconviction review is `pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law") (citation omitted).

Where, as here, a state court denies a collateral application without a "clear indication" that the application was timely or untimely, a federal habeas court "must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness." Evans v. Chavis, 546 U.S. at 198; see also Stewart v. Cate, 757 F.3d 929, 935 (9th Cir.), cert. denied, 135 S.Ct. 341 (2014); Banjo v. Ayers, 614 F.3d 964, 969 (9th Cir. 2010), cert. denied, 131 S.Ct. 3023 (2011) ("We cannot infer from a decision on the merits, or a decision without explanation, that the California court concluded that the petition was timely.") (citation omitted).

In California, a collateral application is timely if filed within a "reasonable time" after the petitioner learns of the grounds for relief. Carey v. Saffold, 536 U.S. at 235 (citations omitted). In Evans v. Chavis, the petitioner delayed over three years before filing his California Supreme Court habeas petition, and failed to provide justification for six months of the delay. Evans v. Chavis, 546 U.S. at 192, 201. The Supreme Court deemed the petition untimely, finding "no authority suggesting, . . . [or] any convincing reason to believe, that California would consider an unjustified or unexplained 6-month filing delay `reasonable.'" Id. at 201. Because California courts have given "scant guidance" on the issue, courts in this circuit apply a "thirty-to-sixty day benchmark" to determine the reasonableness of a delay in filing a subsequent state petition. Stewart v. Cate, 757 F.3d at 935 (citation, internal quotations and footnote omitted).

Here, the interval between the Superior Court's March 11, 2013 denial and the filing of the Court of Appeal petition on March 27, 2013, was not so lengthy as to preclude the Court of Appeal petition from having been "properly filed." See Evans v. Chavis, 546 U.S. at 191 (suggesting that a gap of 30 to 60 days could be reasonable). Accordingly, Petitioner is entitled to statutory tolling from the constructive filing of his Superior Court petition on February 27, 2013, through April 15, 2013, the date the Court of Appeal summarily denied the petition filed in that court. At that time, 298 days still remained in the limitations period.

Petitioner next filed his May 27, 2013 "Motion to Vacate or Set-Aside an Unauthorized Sentence" in the Superior Court. Statutory tolling continues only through "one full round" of state habeas petitions. See Carey v. Saffold, 536 U.S. at 222; Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008), cert. denied, 559 U.S. 1111 (2010); Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003). "In other words, an application for post conviction relief is pending during the intervals between a lower court decision and a filing of a new petition in a higher court." Stancle v. Clay, 692 F.3d 948, 953 (9th Cir. 2012), cert. denied, 133 S.Ct. 1465 (2013) (citations and internal quotations omitted; original emphasis). Thus, even assuming arguendo Petitioner's May 27, 2013 "Motion to Vacate or Set-Aside an Unauthorized Sentence" otherwise constituted a "properly filed application for State post-conviction or other collateral review" within the meaning of section 2244(d)(2), Petitioner is not entitled to gap tolling for the 41-day period between the denial of Petitioner's Court of Appeal habeas petition on April 15, 2013, and the May 27, 2013 filing of Petitioner's "Motion to Vacate or Set-Aside an Unauthorized Sentence." Therefore, as of the denial of that Motion on August 5, 2013, no more than 257 days remained in the limitations period.

Petitioner next filed his August 16, 2013 Superior Court petition for recall of sentence in the Superior Court, which the Superior Court denied on August 19, 2013. Even assuming arguendo that petition otherwise constituted a "properly filed application for State post-conviction or other collateral review," gap tolling does not apply where a petitioner files a subsequent petition in the same court, unless the subsequent petition constitutes an attempt to correct deficiencies in the previous petition. See Stancle v. Clay, 692 F.3d at 953. The petition for recall of sentence did not attempt to correct deficiencies in Petitioner's previous "Motion to Vacate or Set-Aside an Unauthorized Sentence." Accordingly, Petitioner is not entitled to gap tolling for the ten days between August 5, 2013, and August 16, 2013. Thereafter, the statute was tolled for four days, until the Superior Court denied the petition on August 19, 2013. As of August 19, 2013, no more than 247 days remained in the limitations period.

Petitioner next filed his September 2, 2013 "Motion for Order Nunc Pro Tunc" in the Superior Court. In this Motion, Petitioner apparently contended that the Superior Court purportedly had impeded and denied Petitioner's right to appeal by deeming Petitioner's appeal to be untimely and by failing to "record" a "revised" abstract of judgment reflecting the October 22, 2012 resentencing (Respondent's Lodgment 12). Assuming arguendo that this Motion constituted an "application for State post-conviction or other collateral review with respect to the pertinent judgment or claim" within the meaning of section 2244(d)(2), the Motion did not attempt to correct deficiencies in Petitioner's previous Superior Court filings. Therefore, Petitioner is not entitled to gap tolling for the thirteen-day period between August 19, 2013, and September 2, 2013. See Stancle v. Clay, 692 F.3d at 953. Assuming arguendo Petitioner was entitled to statutory tolling during the pendency of this Motion, as of the date of the Court of Appeal's October 9, 2013 denial, no more than 234 days remained in the limitations period.

Petitioner then waited 86 days before he filed his "Motion for Order Nunc Pro Tunc" in the Court of Appeal on January 5, 2014. Because the unjustified delay of 86 days was unreasonable, and because Petitioner previously had sought collateral relief in the Court of Appeal,7 this Motion did not constitute a "properly filed application for State post-conviction or other collateral review" within the meaning of section 2244(d)(2). See Stancle v. Clay, 692 F.3d at 956 (unjustified delay of 82 days unreasonable); Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir.), cert. denied, 132 S.Ct. 554 (2011) (gap of 80 days unreasonable); Livermore v. Sandor, 487 Fed. App'x 342, 343-44 (9th Cir.), cert. denied, 133 S.Ct. 790 (2012) (76-day gap unreasonable); Garcia v. Barnes, 2013 WL 3381323, at *6 (C.D. Cal. July 3, 2013) ("Typically gaps longer than sixty days are considered unreasonable"); Tidwell v. Martel, 2013 WL 856734, at *4 (E.D. Cal. March 6, 2013) (77-day gap unreasonable).

Accordingly, the statute of limitations ran continuously for at least 234 more days from October 10, 2013, to June 1, 2014, by which time the statute had expired. Petitioner's subsequently filed state court motions and petitions could not revive or otherwise toll the statute. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003) (filing of state habeas petition "well after the AEDPA statute of limitations ended" does not affect the limitations bar); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 (2000) ("[a] state-court petition . . . that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled").

In sum, statutory tolling does not save the Petition from the bar of limitations.

C. No Equitable Tolling

AEDPA's statute of limitations is subject to equitable tolling "in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010) (citations omitted). "[A] `petitioner' is entitled to `equitable tolling' only if he shows `(1) that he has been pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Lawrence v. Florida, 549 U.S. 327, 336 (2007). The threshold necessary to trigger equitable tolling "is very high, lest the exceptions swallow the rule." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 558 U.S. 897 (2009) (citations and internal quotations omitted). Petitioner bears the burden to show equitable tolling. See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009). Petitioner must show that the alleged "extraordinary circumstances" were the "cause of his untimeliness." Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006), cert. denied, 549 U.S. 1317 (2007) (brackets in original; quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)).

Petitioner contends trial counsel allegedly disregarded Petitioner's request for transcripts of the sentencing hearing and "other files pertaining to petitioner" (Opposition, ECF Dkt 21, p. 3). Petitioner further contends appellate counsel "[i]mpaired petitioner's filing process" by assertedly disregarding Petitioner's request for trial transcripts (Opposition, ECF Dkt. 21, p. 2).

The alleged lack of transcripts did not prevent Petitioner from filing his Superior Court and Court of Appeal habeas corpus petitions. It is true that the mere fact a petitioner belatedly manages to file a pro se petition without the possession of allegedly necessary materials does not always preclude the possibility of equitable tolling. See United States v. Battles, 362 F.3d 1195, 1198 n.5 (9th Cir. 2004). Here, however, Petitioner evidently did have access to some transcripts at least as of the date he constructively filed his Superior Court petition on February 27, 2013. In that petition, Petitioner quoted excerpts from the Reporter's Transcript (see Respondent's Lodgment 5, ECF Dkt. 17-5, pp. 5-6, 12-14, 22-25).8 Significantly, in that portion of the verified form Superior Court petition asking for an explanation of any delay in filing the petition, Petitioner stated: "Appellant's counsel failed to send trial transcripts in a reasonable time frame." (Respondent's Lodgment 17-5, p. 25). Petitioner did not say he still lacked transcripts as of the date he constructively filed that petition on February 27, 2013.9 Also, neither the Superior Court nor the Court of Appeal denied relief on the ground of any deficiency in the record resulting from Petitioner's purported failure to provide transcripts. Petitioner's ability, despite his alleged lack of transcripts, to file a state petition containing quotations from and references to the record, convincingly militates against the possibility of equitable tolling. See Williams v. Clark, 2008 WL 474343, at *5 (C.D. Cal. Jan. 3, 2008) (counsel's alleged failure to provide petitioner with his files and records did not warrant equitable tolling, where petitioner was able to file a pro se California Supreme Court habeas petition during the period he allegedly did not have his files and records).

Furthermore, the alleged lack of transcripts was not the cause of Petitioner's delay in filing the present Petition. Petitioner does not demonstrate, and the record does not reflect, that any additional transcripts were vital to presentation of his claims. See United States v. Van Poyck, 980 F.Supp. 1108, 1111 (C.D. Cal. 1997) (no equitable tolling where defendant did not state why missing transcripts were necessary for the preparation of challenge to his conviction). Petitioner, who was present at trial and resentencing, was aware of the factual bases for his claims before his conviction became final. Accordingly, any alleged lack of transcripts cannot have prevented Petitioner from filing a timely federal petition. See Ford v. Pliler, 590 F.3d 782, 790 (9th Cir. 2009), cert. denied, 562 U.S. 843 (2010) (equitable tolling unavailable where, because petitioner did not dispute that he was aware of factual bases for his claims, and he did not need allegedly unavailable legal materials in order to file a timely federal petition); see also Green v. Hornbeak, 312 Fed. App'x 915, 916 (9th Cir.), cert. denied, 558 U.S. 884 (2009) (petitioner's "vague assertions regarding the imperative nature of the missing documents and the impossibility of filing in their absence," without any "concrete examples of the kind of information she was seeking — and ultimately obtained — from those documents," insufficient to warrant equitable tolling, where petitioner was personally present at trial, received a "significant portion" of her file shortly after the conclusion of direct review, and did not explain why her personal knowledge and the documents she did have were insufficient to permit the filing of a timely federal petition).

In particular, although Petitioner appears to contend he lacked the transcripts of the Marsden motion and the resentencing proceeding, such transcripts were not indispensable to his timely assertion of these claims. With respect to the Marsden motion to substitute trial counsel, Petitioner was present at that proceeding and could have asserted a timely Marsden claim based on his own knowledge of the proceeding. With respect to the alleged lack of transcripts of the resentencing proceeding, Petitioner's present challenges to his sentence are not based on any factual disputes or arguments concerning Petitioner's sentence. Rather, Petitioner makes the legal arguments that his sentence assertedly was disproportionate and that imposition of a firearm enhancement assertedly was erroneous.

Petitioner also has not shown diligence in attempting to obtain transcripts. Petitioner alleges generally that his "numerous Pro se filings in the State Courts . . . as demonstrated in Respondent's exhibits lodged with this court" supposedly show Petitioner's diligence (Opposition, ECF Dkt. 21, p. 4). Petitioner cites, as purported examples of his alleged diligence, his Superior Court motion for a nunc pro tunc order and abstract of judgment and motion to vacate Petitioner's sentence (Opposition, ECF Dkt. 21, pp. 4-5). Petitioner's pursuit of other court orders and remedies does not demonstrate his diligence in attempting to obtain the allegedly missing transcripts.

In Petitioner's California Supreme Court habeas petition constructively filed on November 30, 2014, Petitioner alleged a purported lack of transcripts as the reason for the delay in filing that petition (Respondent's Lodgment 18, ECF Dkt. 17-18, pp. 7, 32-34). In that petition, Petitioner generally contended that he wrote to his trial counsel and appellate counsel requesting transcripts of the Marsden hearing and the resentencing proceeding, but counsel assertedly failed to respond (Respondent's Lodgment 18, ECF Dkt. 17-18, p. 32). Petitioner did not identify the dates of any such alleged requests, and the only supporting document Petitioner provided consisted of a letter to Petitioner from his appellate counsel, dated November 10, 2011, in which counsel stated that counsel could not send Petitioner transcripts until his case was over (Respondent's Lodgment 18, ECF Dkt. 17-18, pp. 72-73). Petitioner also allegedly contacted the Superior Court twice to obtain transcripts. Petitioner attached to his California Supreme Court petition a document the Superior Court sent to Petitioner, dated August 19, 2013, in which the court stated it was returning Petitioner's request because Petitioner should request copies of transcripts and other court documents from the arresting agency, the probation department, the district attorney's office, the court reporter and/or the police department (Respondent's Lodgment 18, ECF Dkt. 17-18, p. 43). Petitioner also allegedly filed a motion for the production of allegedly missing transcripts of the Marsden hearing and the resentencing proceeding in the Superior Court (Respondent's Lodgment 18, ECF Dkt. 17-18, p. 33). Petitioner attached to the referenced motion a "Notice of Motion for the production of transcripts and case related materials of prior judicial proceedings" bearing a signature date of August 27, 2014 (Respondent's Lodgment 18, ECF Dkt. 17-18, pp. 60). The Superior Court denied this motion on September 22, 2014, stating that Petitioner should contact his counsel to obtain copies of transcripts (Respondent's Lodgment 18, ECF Dkt. 17-18, p. 61).

The Court of Appeal's docket in Petitioner's appeal shows that Petitioner apparently contacted the Court of Appeal in August of 2012, alleging that he had not received transcripts from his appellate counsel (see California Court of Appeal docket in People v. Landrum, case number B232289). Petitioner again communicated with the Court of Appeal in correspondence dated October 20, 2012, concerning transcripts, although the nature of the communication is unclear from the docket.

These allegations and documents do not show that Petitioner exercised diligence in attempting to obtain transcripts. Although Petitioner apparently asked his appellate counsel for transcripts, that premature request occurred while Petitioner's direct appeal was still pending. Petitioner apparently inquired of the Court of Appeal regarding transcripts in 2012, prior to resentencing, but did not request transcripts from the Superior Court until August of 2013. Petitioner does not offer, and the record does not disclose, any legitimate justification for having waited so long after the conviction became final to attempt to seek transcripts from the Superior Court. Rather, the record suggests Petitioner misspent his time filing futile motions for nunc pro tunc orders and to recall his sentence.10 Petitioner has not shown that he exercised diligence in attempting to obtain the transcripts he supposedly needed to file a timely federal petition.

Petitioner also asserts an entitlement to equitable tolling based on Petitioner's pro se status and alleged lack of education and legal knowledge (Opposition, ECF Dkt. 21, p. 5). Petitioner's pro se status, alleged lack of education or legal experience and alleged ignorance of the law cannot warrant equitable tolling. See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir.), cert. denied, 558 U.S. 897 (2009) ("we have held that a pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling") (citation omitted); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("we now join our sister circuits and hold that a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance").

D. Insufficient Showing of Actual Innocence

In his Opposition, Petitioner cites Schlup v. Delo, 513 U.S. 298 (1995) ("Schlup"), and Murray v. Carrier, 477 U.S. 478 (1986), for the proposition that a showing of actual innocence can excuse a procedural default (Opposition, ECF Dkt. 21, p. 4). It is unclear whether Petitioner intends to assert that any alleged actual innocence excuses the untimeliness of the Petition. On this record, any such assertion would fail.

"[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . [or] expiration of the statute of limitations." McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013); see also Lee v. Lampert, 653 F.3d 929, 934-37 (9th Cir. 2011) (en banc). "[T]enable actual-innocence gateway pleas are rare." McQuiggin v. Perkins, 133 S. Ct. at 1928. The Court must apply the standards for gateway actual innocence claims set forth in Schlup. See McQuiggin v. Perkins, 133 S. Ct. at 1928. "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id. (quoting Schlup, 513 U.S. at 329).

In order to make a credible claim of actual innocence, a petitioner must "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." Schlup, 513 U.S. at 324; see also Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) ("[A] claim of actual innocence must be based on reliable evidence not presented at trial.").

"`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998); Calderon v. Thompson, 523 U.S. 538, 559 (1998); Muth v. Fondren, 676 F.3d 815, 819, 822 (9th Cir.), cert. denied, 133 S.Ct. 292 (2012). In order to make a credible claim of actual innocence, a petitioner must "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." Schlup, 513 U.S. at 324.

Petitioner has failed to offer any new, reliable evidence of his supposed actual innocence. Conclusory allegations of alleged actual innocence are insufficient. See Eby v. Janecka, 349 Fed. App'x 247, 249 (10th Cir. 2009) (conclusory allegations of actual innocence insufficient to excuse untimeliness of petition); Sweet v. Delo, 125 F.3d 1144, 1152 n.9 (8th Cir. 1997), cert. denied, 523 U.S. 1010 (1998) (conclusory allegations of actual innocence insufficient to excuse procedural default); Herrera-Villate v. Knipp, 2012 WL 3631536, at *1 (C.D. Cal. Aug. 22, 2012) (conclusory allegations of actual innocence insufficient to excuse untimeliness of petition); Baran v. Hill, 2010 WL 466153, at *7 (D. Or. Feb.9, 2010) (finding that petitioner's self-serving and unsupported statements were not "new and reliable" evidence sufficient to prove actual innocence); McArdle v. Sniff, 2009 WL 1097324, at *5 (C.D. Cal. Apr. 20, 2009) (same). The actual innocence exception to the habeas statute of limitations does not apply here.

In sum, the Petition is untimely.

II. Plaintiff's "Martinez/Thaler" Motion Lacks Merit.

Petitioner apparently seeks an evidentiary hearing pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2012) ("Martinez") and Trevino v. Thaler, 133 S.Ct. 1911 (2013) ("Thaler") (see "Petitioner's Motion for Martinez/Thaler, etc.," p. 1). Martinez held that inadequate assistance of counsel in "initial-review" collateral proceedings could establish cause for a petitioner's procedural default of a claim of ineffective assistance of counsel at trial. Pizzuto v. Ramirez, 783 F.3d 1171, 1176-77 (9th Cir. 2015) (quoting Martinez, 132 at 1315). Thaler "slightly expanded the application of Martinez to include cases from states where petitioners are permitted to raise claims of ineffective assistance on direct appeal, but are practically barred from doing so by local court rules." Pizzuto v. Ramirez, 783 F.3d at 1177. Martinez and Thaler do not concern the habeas statute of limitations, however, and therefore are inapposite here. See Lambrix v. Secretary, Florida Dept. of Corrections, 756 F.3d 1246, 1249 (11th Cir.), cert. denied, 135 S.Ct. 64 (2014) (Martinez rule "`has no application to the operation or tolling of the § 2244(d) statute of limitations' for filing a § 2254 petition") (citations omitted); Smith v. Davis, 2015 WL 5029336, at *2 (N.D. Cal. Aug. 25, 2015) ("Martinez addressed whether certain types of claims are procedurally defaulted, not whether those claims were timely under AEDPA's statute of limitations.") (citations omitted).

To the extent Petitioner requests a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005), any such request must be denied. Rhines v. Weber held that, in limited circumstances, a federal district court has discretion to stay and hold in abeyance a "mixed" habeas petition containing both exhausted and unexhausted claims pending exhaustion of the unexhausted claims. Rhines v. Weber, 544 U.S. at 277-78. A stay under Rhines v. Weber cannot save an untimely federal habeas petition from the bar of limitations. See Billa v. Curry, 2006 WL 3359215, at *1 (E.D. Cal. Nov. 20, 2006), adopted, 2007 WL 46056 (E.D. Cal. Jan. 5, 2007) (denying stay under Rhines v. Weber where the statute of limitations already had run as to the petitioner's claims).

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) denying Petitioner's request for an evidentiary hearing and/or a stay; and (3) denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.