Gearhart v. Gastelo

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 KEVIN A. GEARHART, Case No. 18-cv-06017-WHO (PR) Petitioner, [8] ORDER OF DISMISSAL v. [9] 10 JOSIE GASTELO, Dkt. No. 25 Respondent. [12] 13 INTRODUCTION 14 Petitioner Kevin Gearhart seeks federal habeas relief from his state convictions, 15 claiming that evidence was wrongly admitted, the prosecutor erred, and trial counsel 16 rendered ineffective assistance. Respondent moves to dismiss the habeas petition on the 17 grounds that the claims are procedurally defaulted because the state supreme court held 18 that they were successive and untimely, citing In re Robbins, 18 Cal. 4th 770 (1998) 19 (untimely) and In re Clark, 5 Cal. 4th 750 (1993)(successive). Gearhart contends 20 procedural default should be excused because of the equitable exception granted by 21 Martinez v. Ryan, 566 U.S. 1 (2012). Under Martinez, “[i]nadequate assistance of counsel 22 at initial-review collateral proceedings may establish cause for a prisoner’s procedural 23 default of a claim of ineffective assistance at trial.” Id. at 9 . Gearhart also asserts that he 24 is innocent. 25 Gearhart does not qualify for the Martinez exception. First, Martinez applies only 26 to ineffective assistance of trial counsel claims. This means that the procedural default of 27 two claims (the wrongful admission of evidence and prosecutorial error) cannot be excused 1 only when the procedural bar was applied at the initial-review collateral proceedings. 2 Here, the bar was imposed on a second round of collateral proceedings, which Gearhart 3 pursued to exhaust his claims while the instant suit was stayed. Third, Gearhart has not 4 met the requirement to show his ineffective assistance claims are “substantial.” 5 Further, Gearhart has not shown sufficient evidence of innocence. His evidence and 6 contentions do not amount to a showing that in light of all the evidence, “it is more likely 7 than not that no reasonable juror would have convicted [the petitioner].” Schlup v. Delo, [8] 513 U.S. 298, 327-28 (1995). 9 BACKGROUND 10 In 2014, Gearhart was convicted in state court of committing sex crimes against 11 children and received a sentence of 95 years to life in state prison. (Order Granting First 12 Motion to Dismiss, Dkt. No. 16 at 1.) His attempts to overturn his convictions in state 13 court were unsuccessful. This federal habeas petition followed. 14 After the first order to show cause in this suit issued, respondent moved to dismiss 15 the petition on grounds that the claims were unexhausted or procedurally defaulted or both. 16 (Dkt. No. 10.) The motion was granted and resulted in the dismissal of the procedurally 17 defaulted claims. (Dkt. No. 16.) The habeas action was stayed at Gearhart’s request so 18 that he could exhaust his remaining claims. (Dkt. No. 18.) 19 Gearhart then filed a petition in the state supreme court containing his unexhausted 20 claims, the same claims he raises in the operative federal petition. It was denied: [21] The petition for writ of habeas corpus is denied. (See In re Robbins (1998) [22] 18 Cal. 4th 770, 780 [courts will not entertain habeas corpus claims that are untimely]; In re Clark (1993) 5 Cal. 4th 750, 767-769 [courts will not 23 entertain habeas corpus claims that are successive]). [24] (Second Motion to Dismiss (Second MTD), State Supreme Court Opinion, Dkt. No. 25-1 [25] at 1.) After exhaustion was complete, he filed an amended petition, the action was [27] 1 reopened, and the second order to show cause issued.1 (Dkt. No. 23.) Respondent then 2 file a second motion to dismiss all claims as procedurally defaulted, which is the subject of 3 this order. (Second MTD, Dkt. No. 25.) 4 As grounds for federal habeas relief, Gearhart alleges (i) the admission of child 5 sexual abuse accommodation syndrome (CSAAS) evidence violated his right to due 6 process; (ii) the prosecutor failed to disclose favorable evidence; and (iii) defense counsel 7 rendered ineffective assistance. (Second Order to Show Cause, Dkt. No. 23 at 2.) 8 DISCUSSION 9 i. Procedural Default 10 Respondent contends that the state court’s citations to In re Robbins and In re Clark 11 render all claims procedurally defaulted. (MTD, Dkt. No. 25 at 7-8.) Gearhart responds 12 that procedural default should be excused because of the equitable exception granted by 13 Martinez v. Ryan, 566 U.S. 1 (2012). Under Martinez, “[i]nadequate assistance of counsel 14 at initial-review collateral proceedings may establish cause for a prisoner’s procedural 15 default of a claim of ineffective assistance at trial.” Id. at 9 . 16 Gearhart does not qualify for the Martinez exception. First, Martinez applies only 17 to ineffective assistance of trial counsel claims. This means that the procedural default of 18 his two other claims (the admission of CSAAS evidence and prosecutorial error) cannot be 19 excused under Martinez and will be dismissed. Second, the procedural bar a petitioner 20 seeks to excuse must have been applied at the initial-review collateral proceedings. Here, 21 the bar was imposed on a second round of collateral proceedings, which Gearhart pursued 22 to exhaust his claims while this suit was stayed. Third, Gearhart has not met the 23 requirement to show his ineffective assistance claims are “substantial.” And Gearhart has 24 not shown a fundamental miscarriage of justice. His assertion of innocence does not 25 amount to a showing that in light of all the evidence, “it is more likely than not that no 26 reasonable juror would have convicted [the petitioner].” Schlup, 513 U.S. at 327-28 . [27] 1 a. Procedural Default Principles 2 Federal habeas relief is unavailable if a claim is procedurally defaulted, that is, if a 3 state denied claims because a petitioner failed to comply with the state’s requirements for 4 presenting claims. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). The state’s 5 grounds for denying the claim “must be independent of the federal question and adequate 6 to support the judgment.” Id. at 729 . A state procedural bar is “adequate” if it is “clear, 7 consistently applied, and well-established at the time of the petitioner’s purported default.” 8 Calderon v. U.S. Dist. Ct. (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Wells v. 9 Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). 10 The state carries the initial burden of adequately pleading “the existence of an 11 independent and adequate state procedural ground as an affirmative defense.” Bennett v. 12 Mueller, 322 F.3d 573, 586 (9th Cir. 2003). If the state meets this requirement, the burden 13 then shifts to the petitioner “to place that defense in issue,” which the petitioner may do 14 “by asserting specific factual allegations that demonstrate the inadequacy of the state 15 procedure, including citation to authority demonstrating inconsistent application of the 16 rule.” Id. If the petitioner meets this burden, “the ultimate burden” of proving the 17 adequacy of the state bar rests with the state, which must demonstrate “that the state 18 procedural rule has been regularly and consistently applied in habeas actions.” Id. 19 To overcome a claim of procedural default, petitioner must establish either 20 (1) cause for the default, and prejudice, or (2) that failure to consider the defaulted claims 21 will result in a “fundamental miscarriage of justice.” Harris v. Reed, 489 U.S. 255 , 262 22 (1989). 23 To show cause for a procedural default, the petitioner must “show that some 24 objective factor external to the defense impeded” his efforts to comply with the state 25 procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). For cause to exist, the 26 external impediment must have prevented the petitioner from raising the claim. See 27 McClesky v. Zant, 499 U.S. 467, 497 (1991). 1 errors [complained of] constituted a possibility of prejudice, but that they worked to his 2 actual and substantial disadvantage, infecting his entire [proceeding] with errors of 3 constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (citing 4 United States v. Frady, 456 U.S. 152, 170 (1982)). If the petitioner fails to show cause, the 5 Court need not consider whether the petitioner suffered actual prejudice. Engle v. Isaac, [6] 456 U.S. 107 , 134 n.43 (1982). 7 To show a “fundamental miscarriage of justice,” a petitioner must show that the 8 constitutional error of which he complains “has probably resulted in the conviction of one 9 who is actually innocent.” Bousley v. United States, 523 U.S. 614, 623 (1998) (citing 10 Murray, 477 U.S. at 496 ). “‘[A]ctual innocence’ means factual innocence, not mere legal 11 insufficiency.” Id. at 623 . It is established when, in light of all the evidence, “it is more 12 likely than not that no reasonable juror would have convicted [the petitioner].” Id. 13 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)). A petitioner can make a showing 14 of “actual innocence” by presenting the court with new evidence which raises a sufficient 15 doubt as “to undermine confidence in the result of the trial.” Schlup, 513 U.S. at 324 . 16 b. Application of Procedural Default Principles 17 Respondent has carried the initial burden of adequately pleading the existence of an 18 independent and adequate state procedural ground as an affirmative defense. As 19 respondent points out, the state supreme court denied Gearhart’s habeas application as 20 untimely with a citation to In re Robbins. The United States Supreme Court has held that 21 California’s timeliness rule, as announced in In re Robbins, is an adequate and independent 22 state ground for the denial of federal habeas corpus relief. Walker v. Martin, 562 U.S. 307 , 23 310, 312, 316-21 (2011); accord Bradford v. Davis, 923 F.3d 599, 610 (9th Cir. 2019). 24 Respondent also points out that the state supreme court denied the petition with a 25 citation to In re Clark, 5 Cal. 4th at 767-69 . In Clark, the state supreme court held that “It 26 has long been the rule that absent a change in the applicable law or the facts, the court will 27 not consider repeated applications for habeas corpus presenting claims previously rejected. 1 known to the petitioner at the time of a prior collateral attack on the judgment.” Id. at 7672 68 (internal citations omitted). Clark emphasized that a petitioner must “present all known 3 claims in a single, timely petition for writ of habeas corpus.” Id. at 767 ; accord In re 4 Morgan, 50 Cal. 4th 932, 945 (Cal. 2010) (“A corollary of the rule against successive 5 petitions is the rule that all known claims must be brought in a single, timely habeas corpus 6 petition.”). 7 Respondent has shown that the Clark successive bar is both independent and 8 adequate. It is independent because the state supreme court “explicitly invoke[d] the 9 procedural rule as a separate basis for its decision,” Vang v. Nevada, 329 F.3d 1069 , 1074 10 (9th Cir. 2003), and the application of the bar did not “depend[ ] on a consideration of 11 federal law,” id. at 1075 , federal law having no role in determining whether a state habeas 12 petition is successive, In re Robbins, 18 Cal. 4th at 811 (clarifying that Clark’s successive 13 bar is independent of federal law). 14 Although the Ninth Circuit has not yet ruled in a published case that the Clark bar 15 on successive or abusive petitions is adequate, many district courts have concluded that it 16 is.2 See, e.g., Luckett v. Matteson, No. 18-cv-07670-HSG (PR), 2020 WL 6868834 , at *10 17 (N.D. Cal. Nov. 23, 2020) (“In re Clark constitutes an independent and adequate state 18 procedural ground for the state court’s denial of Petitioner’s claims, barring federal habeas 19 review”); Churich v. Hatton, No. 18-cv-02943-VC (PR), 2020 WL 978625 , at *3 (N.D. 20 Cal. Feb. 28, 2020) (petition barred by Clark’s successive petition rule); Briggs v. State, 21 No. 15-cv-05809-EMC, 2017 WL 1806495 , at *6-7 (N.D. Cal. May 5, 2017) (claims 22 procedurally defaulted because Clark’s bar against successive or abusive petitions is 23 adequate and independent); Flowers v. Foulk, No. C 14-0589 CW, 2016 WL 4611554 , at 24 *4 (N.D. Cal. Sept. 6, 2016) (“California’s bar against successive petitions is . . . adequate 25 and independent.”); Rutledge v. Katavich, No. C 08-5738 MMC (PR), 2012 WL 2054975 , [26] 2 In an unpublished case, the Ninth Circuit found that the state had shown that the Clark [27] bar was adequate and independent; that petitioner failed to put the bar’s adequacy at issue; 1 at *6-7 (N.D. Cal. Jun. 5, 2012) (dismissing claim as procedurally defaulted because state 2 supreme court rejected petition with a citation to Clark’s bar against successive petitions 3 and petitioner failed to overcome procedural bar); Ray v. Cate, No. C 11-1604 YGR (PR), [4] 2014 WL 3841214 , at *15 (N.D. Cal. Aug. 4, 2014) (same); Arroyo v. Curry, No. C 075 03718 SBA (PR), 2009 WL 723877 , at *6 (N.D. Cal. Mar. 18, 2009) (“Respondent has 6 satisfactorily established that California’s procedural bar against successive petitions as 7 applied in practice was an adequate state ground for rejecting Petitioner’s second habeas 8 petition.”). 9 Because the state has met its burden to adequately plead the existence of a valid 10 state procedural bar, it is Gearhart’s burden to show cause and prejudice or that a 11 fundamental miscarriage of justice will result if the claim is not adjudicated on the merits. 12 He has not done so. 13 Gearhart contends procedural default should be excused under the exception set 14 forth in Martinez v. Ryan, 566 U.S. 1 (2012). (Opp., Dkt. No. at 6.) Under Martinez, 15 “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish 16 cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at 17 9. Martinez is a “narrow exception” and applies only to ineffective assistance of trial 18 counsel claims. Davila v. Davis, 137 S. Ct. 2058, 2065 (2017). And Gearhart has not 19 shown a fundamental miscarriage of justice. His assertion of innocence does not amount 20 to a showing that in light of all the evidence, “it is more likely than not that no reasonable 21 juror would have convicted [the petitioner].” Schlup, 513 U.S. at 327-28 . 22 (i) CSAAS Evidence and Prosecutor’s Failure to Disclose 23 As shown above, Gearhart’s claims regarding the admission of CSAAS evidence 24 and the prosecutor’s failure to disclose favorable evidence are procedurally defaulted. 25 Martinez cannot excuse the default of those claims because they are not claims of 26 ineffective assistance of counsel, Davila, 137 S. Ct. at 2065 . Gearhart cannot show cause 27 or prejudice. Nor, as detailed below, has he made any showing of a fundamental 1 which he complains has probably resulted in the conviction of one who is actually 2 innocent. Accordingly, his claims regarding the admission of CSAAS evidence and the 3 prosecutor’s failure to disclose are DISMISSED. 4 Gearhart’s CSAAS claim will be dismissed on the additional ground that it is 5 unexhausted. When Gearhart presented his claim on direct review to the state supreme 6 court before federal habeas proceedings were initiated, he “did not cite a federal 7 constitutional provision, or a federal case construing a federal constitutional provision.” 8 (First Mot. to Dismiss (First MTD), Dkt. No. 10 at 9.) He cited Frye v. United States, 293 9 F. 1013 (D.C. Cir. 1923), but that case does not cite to the Constitution or to any 10 constitutional theory. (Order Granting First MTD, Dkt. No. 16 at 3.) Because Gearhart 11 did not provide the state court with “both the operative facts and the federal legal theory on 12 which his claim is based” he did not exhaust on his first attempt. Kelly v. Small, 315 F.3d 13 1063, 1066 (9th Cir. 2003) (citations and internal quotation marks omitted). Mere “general 14 appeals to broad constitutional principles, such as due process, equal protection, and the 15 right to a fair trial,” do not establish exhaustion. Hiivala v. Wood, 195 F.3d 1098 , 1106 16 (9th Cir. 1999) (citation omitted). Accordingly, Gearhart’s CSAAS claim then became 17 one of those claims he had to exhaust during the stay of his federal habeas action. (Dkt. 18 Nos. 16 and 17.) 19 The CSAAS claim remains unexhausted. During his latest attempt to exhaust 20 Gearhart again failed to cite a federal constitutional provision or a federal case construing a 21 federal constitutional provision, and so he did not exhaust his CSAAS claim. He only 22 referenced due process and cited state cases, with one exception: Daubert v. Merrell Dow 23 Pharmaceuticals, Inc., 509 U.S. 579 (1993). (Second MTD, Petition to State Supreme 24 Court, Dkt. No. 25-1 at 107.) This is insufficient. General appeals to due process do not 25 satisfy the exhaustion requirement. Hiivala, 195 F.3d at 1106 . And a citation to Daubert 26 fails to provide a state court with “the operative facts and the federal legal theory on which 27 his claim is based sufficient to satisfy the exhaustion requirement.” Smith v. Wasden, 747 1 Civil Procedure, not on the Constitution. Gearhart’s CSAAS claim remains unexhausted, 2 and is DISMISSED on this additional ground. 3 (ii) Assistance of Trial Counsel 4 The only remaining claim is that trial counsel rendered ineffective assistance. To 5 establish cause to overcome procedural default under Martinez, a petitioner must show: [6] (1) the claim of ‘ineffective assistance of trial counsel’ was a ‘substantial’ 7 claim; (2) the ‘cause’ consisted of there being ‘no counsel’ or only ‘ineffective’ counsel during the state collateral review proceeding; (3) the 8 state collateral review proceeding was the ‘initial’ review proceeding in respect to the ‘ineffective-assistance-of-trial-counsel claim’; and (4) state [9] law requires that an ‘ineffective assistance of trial counsel [claim] . . . be 10 raised in an initial-review collateral proceeding.’ [11] Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S. at 12-18 ). [12] Respondent concedes that Gearhart has met elements (2) and (4) of Martinez’s [13] requirements: (2) he was not represented by counsel during state habeas corpus [14] proceedings; and (4) the state courts would require him to raise through a habeas petition [15] any ineffective assistance claim that was not based on matters apparent from the record. [16] (Reply, Dkt. No. 27 at 2.) [17] Gearhart has not met the third requirement of Martinez. Martinez applies only [18] when the procedural bar has been applied to initial review collateral proceedings. 566 U.S. 19 at 14 (the exception was created “as an equitable matter, that the initial-review collateral [20] proceeding, if undertaken without counsel or with ineffective counsel, may not have been [21] sufficient to ensure that proper consideration was given to a substantial claim.”); Mendoza [22] v. Legrand, No. 3:13-cv-00607-RCJ-WGC, 2014 WL 3783956 , at *2 (D. Nevada July 7, [23] 2014) (“Martinez has no application to this case because the exhausted claims were [24] procedurally defaulted in petitioner’s second state post-conviction proceeding.”); Bragna [25] v. Ryan, No. CV-11-0552-PHX-FJM, 2012 WL 1868517 , at *2 (D. Arizona May 22, 2012) [26] (“Martinez does not save the claim because it applies only to ineffective assistance of [27] counsel at the first state petition for post-conviction relief, not petitions 2, 3, and 4.”) 1 Respondent correctly points out that the procedural bar was applied at the second round of 2 state habeas proceedings, when Gearhart went to exhaust claims in state court after I 3 stayed the instant federal habeas action. 4 Gearhart also has not met the first requirement of Martinez because he has not 5 shown his claim is “substantial.” An underlying claim is “insubstantial” if it “does not 6 have any merit or . . . is wholly without factual support.” Martinez, 566 U.S. at 14 . To 7 assess whether a petitioner has satisfied the first prong, the Court should “conduct a 8 preliminary assessment of his underlying claim.” Smith v. Ryan, 823 F.3d 1270, 1296 (9th 9 Cir. 2016). 10 Gearhart claims that trial counsel rendered ineffective assistance by (1) waiving 11 opening argument; (2) failing to cross-examine an “1108 witness”; (3) neglecting to 12 “consult a medical and psychiatric expert for any records on victims for sexual abuse”; (4) 13 excluding “both past and present girlfriends from testifying on petitioner[’]s character and 14 integrity”; (5) abandoning “testimony from victims [sic] relatives who witnessed assault 15 with non[-]affiliated camper in August 2012”; (6) failing to “demonstrate rights of the 16 Constitution given to a defendant and meet the requirements to exercise reasonable skill 17 and diligence rendering a deficient performance”; and (7) failing to present the jury with 18 victims[’] police reports stating many inconsistencies and discrepancies.” (Second Am. 19 Pet., Dkt. No. 22 at 7.) 20 These claims do not qualify as substantial because they are not factually supported. 21 They are entirely conclusory. Gearhart does not specify (1) what information or 22 arguments counsel could have raised in his opening argument, let alone what information 23 or arguments would have made a difference at trial; (2) the name of the 1108 witness who 24 should have been cross-examined or why, or specify what information would have been 25 elicited that would have made a difference at trial; (3) what medical or psychiatric 26 information counsel could have obtained or why such evidence would have made a 27 difference at trial; (4) why having his former girlfriends testify would have negated an 1 information that would have made a difference at trial; (5) what information counsel could 2 have obtained if he had pursued testimony from a victim’s relatives or how that 3 information would have made a difference at trial; (6) exactly how counsel failed to “meet 4 the requirements to exercise reasonable skill and diligence rendering a deficient 5 performance”; and (7) what discrepancies existed in the police reports and exactly how 6 such discrepancies would have made a difference at trial. Rather than posing general 7 allegations, a federal habeas petition “is expected to state facts that point to a real 8 possibility of constitutional error.” Mayle v. Felix, 545 U.S. 644, 655 (2005) (internal 9 quotation marks and citation omitted). Conclusory allegations, such as the ones here, are 10 not sufficient. And failing to provide a declaration from his girlfriends or the 1108 witness 11 (or other evidence) in support is also fatal to his claims. See Greenway v. Ryan, 856 F.3d 12 676, 680 (9th Cir. 2017) (allegation counsel should have called a specific witness is not 13 sufficient to establish ineffective assistance because petitioner did not provide an affidavit 14 from the witness.) 15 Moreover, there was strong evidence of Gearhart’s guilt, which militates against 16 any finding that counsel’s performance resulted in prejudice. He was convicted of sex 17 crimes against two minors, Joshua and Aidan.3 (Second MTD, State Appellate Opinion, 18 Dkt. No. 25-1 at 45-49.) Gearhart admitted to police that he masturbated in front of Joshua 19 and Aidan; dared them to “moon” a passing car; put his hands on Joshua’s “private area” 20 when Joshua’s pants were pulled down; “might have touched Joshua’s penis 21 ‘unintentionally’ as many as 20 times while they were ‘roughhousing’”; “might have put 22 his hand down Joshua’s pants to retrieve something Joshua had stuffed down his pants and 23 grabbed Joshua’s penis ‘a good six or seven times’ ‘if not more.’”; dared Joshua and Aidan 24 to suck each other’s penises, which they did; showed Joshua pornography on his phone; 25 told the boys that he would “go to jail for a long time” if they said anything about his [27] 3 Gearhart was found guilty of one count of continuous sexual abuse of a child and seven 1 conduct; and, when being interviewed by the police, and “volunteered that he thought 2 ‘probably the reason why I’m here’ was because Joshua had told his parents about ‘playing 3 Truth or Dare’ and that ‘I exposed myself.’” (Id. at 48-49.) 4 In addition to Gearhart’s own incriminating admissions, there was testimony from 5 other witnesses. This testimony revealed that: Gearhart started sexual molesting Joshua 6 when he was five or six years old; on more than ten occasions Gearhart pulled down 7 Joshua’s pants and underwear and touched his butt and penis; he displayed his penis to 8 Joshua at least twice; Joshua asked Gearhart to stop touching him but he would not; 9 Gearhart showed Aidan and Joshua a video of a man and woman having sex; he told Aidan 10 that “if he had to, he would suck me and Joshua’s penises”; and he told Joshua and Aidan 11 “that he was bisexual and he did the same thing with [other boys] like sucked each other’s 12 penises and that stuff.” (Id. at 46-48.) 13 Gearhart also contends he is innocent and that this Court must correct a 14 fundamental miscarriage of justice. To this end, he states in a conclusory fashion that the 15 boys’ claims are false. (Second Am. Pet., Dkt. No. 22 at 8; Opp., Dkt. No. .) He also 16 appends declarations from five persons, four of whom have the last name of “Gearhart.” 17 (Id., Dkt. No. 22-1 at 1-8.) The declarations are from alleged witnesses to events that 18 occurred during a 2012 camping trip involving Joshua’s and Gearhart’s families. In sum, 19 the declarations state that the boys were rude, troublesome, and deceptive during the 20 camping trip.4 21 This evidence is not sufficient to show innocence. First, it is not new. See Schlup, [22] 513 U.S. at 324 (a petitioner can make a showing of actual innocence by presenting the 23 court with new evidence which raises a sufficient doubt as “to undermine confidence in the 24 result of the trial.”) Gearhart was convicted in 2014, (Pet., Dkt. No. 1 at 1), and the 25 declarations date from 2012 and 2013. Second, though the declarations might show that [27] 4 According to the declarations, the boys accused another camper (not Gearhart) of 1 || the boys were rude and deceptive, they do not negate any element of any offense or 2 || otherwise provide a strong defense. They certainly do not amount to a showing that in 3 || light of all the evidence, “it is more likely than not that no reasonable juror would have 4 || convicted [the petitioner].” /d. at 327-28. 5 Respondent has shown that the ineffective assistance of counsel claims are 6 || procedurally defaulted. Gearhart has not shown that he qualifies for the Martinez 7 || exception or has otherwise shown cause, prejudice, or that a fundamental miscarriage of 8 || justice will result if his claims are not adjudicated. Accordingly, respondent’s motion to 9 || dismiss will be granted and the petition dismissed. 10 CONCLUSION 11 Respondent’s motion to dismiss is GRANTED. (Dkt. No. 25.) The petition is DISMISSED. 5 13 A certificate of appealability will not issue. Gearhart has not shown “that jurists of S 14 || reason would find it debatable whether the petition states a valid claim of the denial of a 3 15 || constitutional right and that jurists of reason would find it debatable whether the district a 16 || court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 17 The Clerk shall terminate all pending motions, enter judgment in favor of 18 || respondent, and close the file. 19 IT IS SO ORDERED. 20 || Dated: November 8, 2021 i M.Qe 71 ILLIAM H. ORRICK 22 United States District Judge