FILED
NOT FOR PUBLICATION SEP 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GREGORIO C. FUNTANILLA, Jr., No. 09-15479
Petitioner - Appellant, D.C. No. 1:06-cv-01181-LJO
v.
MEMORANDUM *
KEN CLARK, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted August 10, 2010 **
Before: LEAVY, HAWKINS, and IKUTA, Circuit Judges.
California state prisoner Gregorio C. Funtanilla, Jr. appeals pro se from the
district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction pursuant to 28 U.S.C. § 2253 1, and we affirm.
The district court did not err when it dismissed Funtanilla’s habeas petition
as untimely. See 28 U.S.C. § 2244(d)(1). Even if Funtanilla were entitled to
equitable tolling from the time he discovered the factual predicate of his claim until
he filed his first state habeas petition, his federal petition was untimely. Equitable
tolling would have ended on January 27, 2003, when Funtanilla filed his state
habeas petition, as he was capable of pursuing habeas relief as of that date. See
Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005), modified on other
grounds by 447 F.3d 1165 (9th Cir. 2006). The Kings County Superior Court
concluded his state habeas petition was untimely, and therefore that petition did not
toll AEDPA’s limitations period because it was not properly filed. See Pace v.
DiGuglielmo, 544 U.S. 408, 417 (2005) (“Because the state court rejected
petitioner’s [postconviction] petition as untimely, it was not ‘properly filed,’ and
he is not entitled to statutory tolling under § 2244(d)(2).”); Bonner v. Carey, 425
F.3d 1145, 1148-49 (9th Cir. 2005) (applying Pace to California’s timeliness rule
for postconviction petitions), as amended, 439 F.3d 993 (9th Cir. 2006).
1
We certify for appeal, on our own motion, the issue of whether the district
court properly dismissed Funtanilla’s habeas petition as untimely, and whether the
district court abused its discretion by declining to hold an evidentiary hearing
regarding Funtanilla’s entitlement to equitable tolling.
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Accordingly, AEDPA’s limitations period expired on January 27, 2004, more than
two and a half years before Funtanilla filed his 2006 federal habeas petition.
Because Funtanilla’s federal petition was untimely regardless of equitable tolling,
there was no basis for the district court to hold an evidentiary hearing. See Roy v.
Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (stating that a habeas petitioner should
receive an evidentiary hearing when allegations, if true, would entitle him to
equitable tolling).
AFFIRMED.
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