Gearhart

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 6 KEVIN A. GEARHART, Case No. 18-cv-06017-WHO (PR)

Petitioner,

ORDER OF DISMISSAL

v.

JOSIE GASTELO, Dkt. No. 25 Respondent.

12 INTRODUCTION Petitioner Kevin Gearhart seeks federal habeas relief from his state convictions, claiming that evidence was wrongly admitted, the prosecutor erred, and trial counsel rendered ineffective assistance. Respondent moves to dismiss the habeas petition on the grounds that the claims are procedurally defaulted because the state supreme court held that they were successive and untimely, citing In re Robbins, 18 Cal. 4th 770 (1998) (untimely) and In re Clark, 5 Cal. 4th 750 (1993)(successive). Gearhart contends procedural default should be excused because of the equitable exception granted by Martinez v. Ryan, 566 U.S. 1 (2012). Under Martinez, “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at…