FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DERRICK LAKEY, No. 09-15940
Petitioner-Appellant, D.C. No.
v. 2:05-cv-01864-
RODERICK HICKMAN, JAM-GGH
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted
September 15, 2010—San Francisco, California
Filed January 5, 2011
Before: J. Clifford Wallace and Sidney R. Thomas,
Circuit Judges, and Richard Mills, Senior District Judge.*
Opinion by Judge Wallace
*The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
403
LAKEY v. HICKMAN 405
COUNSEL
Mark David Greenberg, Oakland, California, for petitioner-
appellant Derrick Lakey.
406 LAKEY v. HICKMAN
Justin Riley (argued), Edmund G. Brown, Michael P. Farrell
and Brian G. Smiley, Office of the California Attorney Gen-
eral, Sacramento, California, for respondent-appellee Roder-
ick Hickman.
OPINION
WALLACE, Senior Circuit Judge:
Petitioner-Appellant Derrick Lakey, a California state pris-
oner, appeals from the district court’s denial of his petition for
a writ of habeas corpus. We have jurisdiction pursuant to 28
U.S.C. § 2253, and we dismiss the appeal because Lakey’s
habeas petition is time-barred under 28 U.S.C. § 2244(d)
(1996).
I.
The Anti-Terrorism and Effective Death Penalty Act of
1996 (AEDPA) allows state prisoners only one year from the
completion of the direct review process in state court to apply
in federal court for a writ of habeas corpus. 28 U.S.C.
§ 2244(d)(1). The limitations period, however, is subject to
both statutory tolling during the pendency of a properly filed
state application for post-conviction relief, Holland v. Flor-
ida, 130 S. Ct. 2549, 2554 (2010), and to equitable tolling
when a state prisoner pursues his federal rights diligently, but
is prevented from filing a timely petition by some extraordi-
nary circumstance, id. at 2562. Although Lakey filed his fed-
eral petition nearly three years after the state court direct
review process ended, he contends that his petition qualifies
for both statutory and equitable tolling.
Following a 1996 jury trial in state court, Lakey was con-
victed on one count of first-degree murder and two counts of
attempted murder for his participation in a drive-by shooting
LAKEY v. HICKMAN 407
in Stockton, California. After an unsuccessful direct appeal,
Lakey’s convictions became final for purposes of AEDPA’s
one-year statute of limitations on October 30, 2002. See 28
U.S.C. § 2244(d)(1)(A).
Over the next three years, Lakey initiated a series of unsuc-
cessful state-court applications for post-conviction relief,
including two rounds of state habeas petitions. Lakey began
his first round of state petitions in California superior court on
April 5, 2003. After that court denied relief, Lakey slowly
worked his way to the Supreme Court of California, which
rejected his first round of claims without comment on August
25, 2004. Thirty days later, on September 24, 2004, Lakey
initiated a second round of state habeas proceedings. The state
trial court rejected this second set of claims on November 5,
2004, and the state court of appeal summarily denied relief on
December 22, 2004. Nearly one year later, on December 15,
2005, the Supreme Court of California denied Lakey’s final
petition for post-conviction review as untimely.
Lakey filed his federal petition in the Eastern District of
California on September 15, 2005, which was 267 days after
the state court of appeal summarily denied Lakey’s second
round of post-conviction relief and 90 days before the state
supreme court rejected those claims on timeliness grounds.
According to Lakey and the State, at least 352 days of
AEDPA’s 365-day limitations period had expired by the time
Lakey filed his federal petition. One hundred fifty-seven days
ran from the finalization of Lakey’s direct appeal on October
30, 2002, and the filing of his initial state petition on April 5,
2003. The parties agree that another 165 days expired as a
result of two lengthy filing delays that occurred during
Lakey’s first round of state habeas proceedings: an 84-day
gap following the state trial court’s denial of relief and an 81-
day delay in seeking review from the state supreme court after
Lakey’s claims were denied by the court of appeal. See Chaf-
fer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (refusing
to toll AEDPA’s statute of limitations when interval between
408 LAKEY v. HICKMAN
California prisoner’s state court filings is “substantially longer
than” the 30 to 60 days typically afforded in other states). But
we need address the issue of whether Lakey’s unexplained 81
and 84-day delays substantially exceed the 30 to 60-day limits
because in his brief and at oral argument, Lakey explicitly
conceded that interval tolling is unavailable for the time that
passed during his relatively lengthy filing delays. Finally, an
additional 30 days expired after the completion of Lakey’s
first round of state petitions on August 25, 2004, and the
beginning of his second round on September 24, 2004. See
Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003)
(AEDPA’s limitations period is not tolled during interval
between California petitioner’s first and second round of state
petitions).
Although both parities agree that at least 352 days had
expired by the time Lakey filed his federal petition, they dis-
pute whether any additional time had lapsed. Lakey contends
that the remaining time is subject to both statutory and equita-
ble tolling. According to the State, however, an additional 267
days of the limitations period expired between December 22,
2004, when the California Court of Appeal summarily denied
Lakey’s second round of state proceedings, and September
15, 2005, when Lakey filed his federal petition. The State
maintains that tolling is unavailable during this time because
Lakey’s subsequent petition for review to the Supreme Court
of California was ultimately denied as untimely under state
law. Therefore, the dispute in this case focuses on whether
Lakey is entitled to statutory or equitable tolling for the 267
days that his final petition was pending before the Supreme
Court of California.
In the federal district court, a magistrate judge recom-
mended that Lakey’s federal habeas petition be dismissed as
time-barred under section 2244(d)’s statute of limitations. The
district court, however, rejected this recommendation, con-
cluding that Lakey’s petition was timely because he “was
entitled to AEDPA tolling for the 267 days his [final state]
LAKEY v. HICKMAN 409
petition was pending” before the Supreme Court of Califor-
nia. The district court then rejected Lakey’s federal claims on
the merits.
In the instant appeal, Lakey challenges the district court’s
denial of habeas relief, contending that he was convicted of
first-degree murder in violation of his due process rights.
Nevertheless, we need not reach the merits of Lakey’s due
process claims if the district court was incorrect when it deter-
mined Lakey filed his federal petition within AEDPA’s stat-
ute of limitations. Upon de novo examination of the district
court’s tolling decision, see Espinoza-Matthews v. California,
432 F.3d 1021, 1025 (9th Cir. 2005), we must determine
whether Lakey is entitled to tolling during the pendency of his
untimely petition for review to the Supreme Court of Califor-
nia. Unless statutory or equitable tolling are available for the
267 days at issue, Lakey’s federal petition will be time-barred
under 28 U.S.C. § 2244(d).
II.
[1] We first address Lakey’s request for statutory tolling.
Under the AEDPA, “[t]he time during which a properly filed
application for State post-conviction or other collateral review
. . . is pending shall not be counted toward any period of limi-
tation . . . .” 28 U.S.C. § 2244(d)(2) (emphasis added). When
“the state court reject[s]” a petition for post-conviction relief
“as untimely, it [is] not ‘properly filed’ ” and does not toll the
limitations period. Pace v. DiGuglielmo, 544 U.S. 408, 417
(2005). This is so because state “time limits, no matter their
form, are ‘filing’ conditions” that “go to the very initiation of
a petition and a court’s ability to consider that petition.” Allen
v. Siebert, 552 U.S. 3, 5-6 (2007) (internal quotation omitted)
(untimely state petition does not toll section 2244(d)(1) even
if state time limit contains element of “discretion” or operates
as an “affirmative defense”). Based on these principles, we
have consistently held that statutory tolling “is unavailable
where a state habeas petition is deemed untimely under Cali-
410 LAKEY v. HICKMAN
fornia’s timeliness standards.” White v. Martel, 601 F.3d 882,
884 (9th Cir. 2010), citing Bonner v. Carey, 425 F.3d 1145,
1149 (9th Cir. 2005).
[2] Statutory tolling is unavailable for the 267 days at issue
here because Lakey’s final state habeas petition was deemed
untimely under California law. In denying Lakey’s final peti-
tion for post-conviction relief, the Supreme Court of Califor-
nia cited its decision of In re Clark, 855 P.2d 729 (Cal. 1993),
which “dealt specifically with the bar of ‘untimeliness.’ ”
Park v. California, 202 F.3d 1146, 1152 n.3 (9th Cir. 2000).
Because Lakey’s untimely petition must be treated as improp-
erly filed, or as though it never existed, for purposes of sec-
tion 2244(d), the pendency of that petition did not toll the
limitations period. See White, 601 F.3d at 884; Bonner, 425
F.3d at 1149.
[3] We disagree with Lakey’s contention that White and
Bonner are inconsistent with our recent decision in Ramirez
v. Yates, 571 F.3d 993 (9th Cir. 2009). In Ramirez, we held
that a California petitioner was entitled to statutory tolling
during the pendency of a state coram nobis petition that was
later denied on the merits due to the petitioner’s failure to
“demonstrate that he . . . proceeded with due diligence,”
which is a necessary condition for obtaining coram nobis
relief under California law. Id. at 999. According to Lakey, he
is likewise entitled to tolling for the 267 days at issue here
because California’s timeliness rule for state habeas filings
frequently requires consideration of a petitioner’s diligence.
See, e.g., People v. Kim, 202 P.3d 436, 449 (Cal. 2009). Nev-
ertheless, unlike in Ramirez, Lakey’s petition for collateral
review was not denied as without merit or for failure to satisfy
a “ ‘condition for obtaining relief,’ ” but rather because Lakey
failed to comply with California’s timeliness rule for state
habeas petitions. As the Supreme Court explained in Pace,
“[w]hen a postconviction petition is untimely under state law,
‘that [is] the end of the matter’ for purposes of” statutory toll-
ing. 544 U.S. at 414 (second alteration in original), quoting
LAKEY v. HICKMAN 411
Carey v. Saffold, 536 U.S. 214, 236 (2002). The Court even
used California’s timeliness rule as an example of a “filing
condition” that must be satisfied for a state application for
post-conviction relief to be “properly filed” within the mean-
ing of section 2244(d)(2). Id. at 413-14, citing Carey, 536
U.S. at 226.
Thus, statutory tolling is unavailable for the 267 days that
Lakey’s untimely state petition was pending before the
Supreme Court of California. Only equitable tolling can keep
Lakey’s federal petition from being time-barred by 254 days.
III.
[4] We next turn to Lakey’s request for equitable tolling.
We recognize that “a ‘petitioner’ is ‘entitled to equitable toll-
ing’ only if he shows ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood
in his way’ and prevented timely filing.” Holland, 130 S. Ct.
at 2562, quoting Pace, 544 U.S. at 418. “The petitioner must
additionally show that the extraordinary circumstances were
the cause of his untimeliness . . . and that the extraordinary
circumstances made it impossible to file a petition on time.”
Ramirez, 571 F.3d at 997 (internal quotations, citations, and
alteration omitted). The high threshold of extraordinary cir-
cumstances is necessary “lest the exceptions swallow the
rule.” Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006)
(internal quotations and citation omitted).
[5] In the appeal before us, both parties agree that 352 of
days of the limitations period had expired as of December 22,
2004, when the California Court of Appeal summarily denied
Lakey’s second round of state post-conviction proceedings.
On April 27, 2005, 126 days later, the Supreme Court issued
its decision in Pace, which rendered Lakey’s federal petition
time-barred because his then-pending state habeas application
was deemed “untimely” and “improperly filed.” See Pace,
544 U.S. at 413-14. Prior to Pace, however, our precedent, as
412 LAKEY v. HICKMAN
established in Dictado v. Ducharme, 244 F.3d 724, 727-28
(9th Cir. 2001), provided “that an untimely . . . State postcon-
viction petition was ‘properly filed’ for purposes of [section]
2244(d) and tolled the statute of limitations while the petition
was pending in the state courts.” Townsend v. Knowles, 562
F.3d 1200, 1205 (9th Cir. 2009) (internal quotations omitted),
quoting Harris v. Carter, 515 F.3d 1051, 1053 (9th Cir.
2008). Based on Townsend and Harris, Lakey asserts that he
is entitled to equitable tolling for the 267 days at issue
because, from the moment Pace was decided, it became “im-
possible for [him] to file a timely petition.” See Harris, 515
F.3d at 1056.
[6] However, in Townsend and Harris, equitable tolling
was appropriate because the petitioners made a showing that
they actually relied on a correct interpretation of the Dictado
rule in delaying their federal petitions. See Townsend, 562
F.3d at 1206; Harris, 515 F.3d at 1053-54. Lakey does not set
forth any facts suggesting similar reliance on our prior prece-
dent. Instead, the notion that Lakey relied on Dictado is belied
by the fact that he waited an additional 141 days after Pace
was decided to file his federal petition. The petitioners in
Townsend and Harris, on the other hand, filed their federal
petitions either before or immediately after Pace went into
effect. Townsend, 562 F.3d at 1206 (petitioner filed his fed-
eral petition before Court’s decision in Pace); Harris, 515
F.3d at 1054 (federal petition filed just fourteen days after
Pace). Lakey’s 141-day delay in bringing his federal petition
indicates that he did not diligently pursue his rights. See Hol-
land, 130 S. Ct. at 2562.
[7] Moreover, even if we were to conclude that equitable
tolling was appropriate for the time period that the Dictado
rule was still in effect, the statute of limitations would only be
tolled until the Court issued its decision in Pace. Once Pace
was decided, Lakey had notice that Dictado had been over-
ruled and that tolling would be unavailable if his state petition
was denied as untimely. See Pace, 544 U.S. at 413-414 & n.3.
LAKEY v. HICKMAN 413
Pace also explicitly advised state prisoners, such as Lakey, to
file a protective federal petition to avoid a possible timeliness
bar. Id. at 416. Despite this warning, Lakey waited nearly five
months before filing his federal claims. Thus, even giving
Lakey the benefit of equitable tolling for the time period prior
to the Court’s decision in Pace, Lakey’s subsequent 141-day
delay rendered his federal petition untimely by at least 128
days.
IV.
[8] For these reasons, we hold that Lakey is not entitled to
statutory and equitable tolling. We therefore dismiss his
appeal from the denial of habeas relief and instruct the district
court to enter an order dismissing Lakey’s federal petition as
time-barred under 28 U.S.C. § 2244(d)’s statute of limitations.
DISMISSED WITH INSTRUCTIONS.