Tarver

MEMORANDUM **

Johnny Tarver appeals the district court’s judgment dismissing with prejudice *340 his 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…