Jamaul Monk v. Terri Gonzalez, Warden

MEMORANDUM

Jamaul Monk was convicted in 2005 of the gang-related shooting of Darryl Bell in 2003, which left Bell paralyzed from the neck down. Bell identified Monk as the shooter, both before and during Monk’s two trials, the first of which ended in a hung jury. Bell died prior to Monk’s sentencing in 2006.

In 2010, Monk filed a pro se Petition For Writ Of Habeas Corpus By A Person In State Custody pursuant to 28 U.S.C. § 2254 (§ 2254 Petition). The district court dismissed Monk’s § 2254 Petition as untimely, rejecting Monk’s argument that his “actual innocence” opened the gateway to consideration of his untimely claims, pursuant to Schlup v. Delo, 513 U.S. 298 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995). Monk appealed. Monk was granted a certificate of appealability, see 28 U.S.C. § 2253 (c)(3), with respect to the following issue: “[Wjhether appellant has made a credible claim of actual innocence which excuses his untimely filing [of his § 2254 Petition].” We affirm dismissal of Monk’s § 2254 Petition as untimely.

1. We must first determine what record we may consider on appeal. The respondent has moved to strike Monk’s excerpts of record and brief on appeal, on the ground that…