Tarver v. California
115 F. App'x 339
9th Cir.
2004
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Docket

MEMORANDUM **

Johnny Tarver appeals the district court’s judgment dismissing with prejudice *340his 28 U.S.C. § 2254 petition for writ of habeas corpus as untimely filed beyond the one-year statute of limitations provided in 28 U.S.C. § 2244(d)(1). We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Tarver contends that his untimeliness should be excused on grounds that he is able to pass through the actual innocence gateway, which may allow a federal habeas court to hear the merits of otherwise time-barred constitutional claims, see Majoy v. Roe, 296 F.3d 770, 776 n. 1 (9th Cir.2002), because his offense of conviction-conspiracy to commit murder in the second degree-is no longer a cognizable offense under California law, see People v. Cortez, 18 Cal.4th 1223, 1237-38, 77 Cal.Rptr.2d 733, 960 P.2d 537 (Cal.1998) (holding that “all conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first-degree murder”).

Although what consequence a finding of actual innocence has with respect to the one-year statute of limitations remains an open question in this Circuit, see Majoy, 296 F.3d at 778, we need not resolve that question today because Tarver’s actual innocence claim is foreclosed by Eleve v. Hill, 243 F.3d 1149, 1151 (9th Cir.2001) (holding that People v. Cortez did not invalidate a pre-Cortez conviction for conspiracy to commit second degree murder).

AFFIRMED.

Notes

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.