FILED
NOT FOR PUBLICATION JAN 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTHONY TAYLOR, No. 09-16917
Petitioner - Appellant,
No. 2:05-cv-0860 JAM-GGH
v.
C. EVANS, Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted November 1, 2010
San Francisco, California
Before: GOULD and IKUTA, Circuit Judges, and MAHAN,** District Judge.
Appellant Taylor raises three issues in this appeal: (1) whether the California
Court of Appeal erroneously concluded that he was not deprived of due process of
law when he was sentenced under the state’s “three strike” law based on a prior
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
serious felony conviction that he had not sustained; (2) whether the district court
erroneously dismissed his ineffective assistance of counsel claim as unexhausted;
and (3) whether the district court erroneously concluded that his juror misconduct
claim was not entitled to equitable tolling.
Under the Antiterrorism and Effective Death Penalty Act of 1996, which
governs this matter, the reviewing court “must deny [the] petition unless the state
court’s adjudication of the claims resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law as
determined by the United States Supreme Court or was based on an unreasonable
determination of the facts in light of the evidence presented before the state
courts.” Bible v. Ryan, 571 F.3d 860, 869 (9th Cir. 2009) (citing 28 U.S.C. §
2254(d)).
The court of appeal did not unreasonably apply clearly established Supreme
Court law (specifically, United States v. Tucker, 404 U.S. 1048 (1972) and
Townsend v. Burke, 334 U.S. 736 (1948)) when it rejected petitioner's due process
claim, because its conclusion that the sentencing court had not relied on the
disputed conviction in sentencing the defendant is not an unreasonable
determination of the facts in light of the evidence presented to it. 28 U.S.C. §
2254(d). This conclusion is supported by the sentencing court’s statement that it
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calculated Taylor’s criminal history “regardless” of the disputed conviction, and
that aside from the disputed conviction, Taylor had sustained three “strikes” or
felony convictions.
Further, the district court did not err when it dismissed Taylor’s ineffective
assistance of counsel claim as unexhausted. Under Sandgathe v. Maass, 314 F.3d
371, 377 (9th Cir. 2002), the court need not decide if a claim was in fact brought if
it appears that the state court actually considered and decided it. To satisfy the
exhaustion requirement, Taylor must “fairly present” his federal claims to the state
courts. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513
U.S. 364, 365–66 (1995) (per curiam); Casey v. Moore, 386 F.3d 896, 911 (9th
Cir. 2004) (quoting Baldwin, 541 U.S. at 29).
Claims are “fairly presented” in an attachment to the petition when the
petitioner submits “extensive argument in support of all [such] claims as well as
citations to [supporting] authority and to relevant parts of the record.”
Insyxiengmay v. Morgan, 403 F.3d 657, 669 (9th Cir. 2005).
Taylor did not present an argument in support of his ineffective assistance
claim nor did he cite to requisite authority as required by Insyxiengmay. Id. Rather,
he simply attached a memorandum of the Sacramento County Superior Court to his
petition, which memorandum mentioned the claim.
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Finally, the district court did not err when it concluded that Taylor was not
entitled to equitable tolling. Under Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003),
a petitioner is entitled to equitable tolling if there are “extraordinary
circumstances” that render the actions of counsel egregious, and not simply
negligent. Id. at 801. In that case, the failure of Spitsyn’s counsel to communicate
with, perform essential services for, and conduct basic research to aid his client
warranted equitable tolling. Id. at 800–02. Here, Taylor’s counsel had ample
communication with him, yet simply missed the deadline to file the petition.
Holland v. Florida, 130 S. Ct. 2549 (2010), held that petitioner Holland was
entitled to equitable tolling due to his counsel’s failure to respond to letters from
him, to do any necessary research, to communicate with him over a period of
years, and ultimate neglect to inform him that the Supreme Court had decided his
case. The court distinguished Holland from cases such as the present case, by
stating that “a ‘garden variety claim of excusable neglect,’ such as simple
‘miscalculation’ that leads a lawyer to miss a filing deadline, does not warrant
equitable tolling.” Id. (internal citations omitted).
Taylor’s counsel merely missed the deadline to file the petition. His conduct
did not rise to the level of egregious conduct, and his attempt take the blame for his
actions does not convince this court otherwise.
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AFFIRMED.
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