FILED
NOT FOR PUBLICATION SEP 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
JOAÏUIN H. CIRIA, No. 08-17300
Plaintiff - Appellant, D.C. No. 3:07-cv-04770-MMC
v.
MEMORANDUM *
NICHOLAS J. RUBINO; OFFICER
AISSA; JAMES CROWLEY; ARTHUR
GERRANS,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
Argued and Submitted April 16, 2010
San Francisco, California
Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
California prisoner Joaquin Ciria ('Ciria') appeals the district court's
judgment dismissing his pro se 42 U.S.C. y 1983 action alleging that the San
Francisco police officers violated his constitutional rights by failing to disclose
potentially exculpatory evidence in their possession during his murder trial. This
Court appointed appellate counsel. The district court held that Ciria's claim was
barred under Hecµ v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383
(1994), because a determination that Ciria is entitled to relief under Brady v.
Maryland, 373 U.S. 83 (1963), would necessarily demonstrate the invalidity of his
conviction. The district court also held his claim was barred by the statute of
limitations, because Ciria and/or his attorney µnew or, should have discovered
through due diligence, all of the alleged injuries and their causes no later than the
conclusion of Ciria's state criminal proceedings. We have jurisdiction pursuant to
28 U.S.C. y 1291. We affirm.
A dismissal pursuant to Federal Rules of Civil Procedure Rule 12(b)6 is
reviewed de novo. North County Communication Corp. v. California Catalog &
Technology, 2010 WL 446505 ÁÁF.3dÁÁÁÁ, (9th Cir. 2010)(citing Rhoades v. Avon
Prods., Inc. 504, F.3d 1151,1156 (9th Cir. 2007).
Appellant argues that the district court erred when it held his claim was
barred by the statute of limitations because it was predicated on the erroneous
2
assumption that a criminal defendant has the burden of proof to investigate and
uncover state misconduct. Appellant argues that accepting the district court's
decision that Ciria (actual or imputed through his counsel) µnew or should have
discovered through due diligence at the time of his trial rewards prosecutorial
misconduct, circumventing Supreme Court precedent in Stricµler v. Greene, 527
U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), and Banµs v. Dretµe, 540 U.S.
669, 697, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). We disagree.
Section 1983 claim 'accrues when the plaintiff µnows or has reason to µnow
of the injury, which is the basis of the action.' Maldonando v. Harris, 370 F.3d
945,955 (9th Cir. 2004)(quoting TwoRivers v. Lewis, 174 F.3d 987,992 (9th Cir.
1999)). Two questions this Court must consider are (1) whether Appellant or his
counsel could have reasonably been expected to asµ the prosecutor for the
surveillance records and witness interview notes at the time of initial criminal
proceeding; and (2) whether the prosecutor would have disclosed the documents.
Bibeau v. Pacific Northwest Research Foundation, 188 F.3d 1105, 1108 (9th Cir.
1999). The record shows that Ciria believed, at the time of trial, he was under
surveillance between December 1989 and April 1990. ER. 28-29. This time frame
includes the night of the murder. Appellant also µnew the identity of the officers
that performed the witness interviews. Id at 32,34,91. These facts demonstrate that
3
Appellant µnew the underlying facts of his alleged constitutional injury at the time
of trial. We disagree with Appellant's assertion that he gained a factual basis of his
alleged injury in 2006 because his previous Petitions for Writ of Habeas Corpus
demonstrate that he had µnowledge of the alleged injury.
We conclude, based on these facts, that the district court correctly found that
Ciria's claim was time barred. Ciria had a factual basis for his constitutional
injury, at the latest, at the time of his trial in 1991. Applying California's one year
personal injury statute of limitations and the prisoner tolling statute, we hold that
the statute of limitations ran on February 20, 1994. See Jones v. Blanas, 393 F.3d
918,927 (9th Cir. 2004)(recognizing that California's statute of limitations for
personal injury actions is one year for injuries arising before January 1, 2003); see
also Cal. Civ. P. 352.1(a) (two year tolling provision for prisoners). Therefore,
Ciria's Section 1983 claim is untimely because it was filed after February 20,
1994.
On appeal, appellant's appointed counsel relies on a recent Supreme Court
decision dealing with the right to obtain DNA testing and other scientific evidence
not available at the time of trial. See Dist. Attorney's Office for the Third Judicial
Dist. v. Osborne,ÁÁÁÁ U.S.ÁÁÁÁ, 129 S. Ct. 2308, 175 L. Ed. 2d 38 (2009).
4
Osborne does not apply to the situation here, where the claimed exculpatory
evidence was available at the time of trial.
AFFIRMED.
5
FILED
Ciria v. Rubino, Case No. 08-17300 SEP 02 2010
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
I concur in the result.