Kelly

MEMORANDUM **

Appellant-Petitioner Michael J. Kelly (“Kelly”) appeals the denial of his petition for habeas corpus. While Kelly admits that his petition is untimely under the one-year statute of limitation in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), he seeks to use the miscarriage of justice gateway to assert his claim of ineffective assistance of counsel. Assuming, without deciding, that the miscarriage of justice gateway can be extended to non-capital sentencing procedures, and used to excuse AEDPA’s one-year statute of limitation, Kelly must (1) identify some constitutional error, and (2) demonstrate by clear and convincing evidence that but for the constitutional error he would not have been eligible for the sentence he received. See Clark v. Lewis, 1 F.3d 814, 821 (9th Cir.1993).

Although Kelly asserts an ineffective assistance of counsel claim, he failed to demonstrate that he would not have received a twenty-two year sentence, but for his counsel’s ineffectiveness. In fact, Kelly concedes that even if his petition were granted, he could still be subject to the same sentence. He does not challenge the validity of the other two serious felony convictions…