FILED
NOT FOR PUBLICATION APR 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
ANGEL JESUS ALVAREZ, No. 09-15547
Petitioner - Appellant, D.C. No. 5:06-cv-05027-JF
v.
MEMORANDUM *
ROBERT K. WONG,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted March 14, 2011
San Francisco, California
Before: WALLACE, NOONAN, and CLIFTON, Circuit Judges.
Angel Jesus Alvarez appeals the district court's dismissal of his petition for
writ of habeas corpus as untimely. We affirm.
Absent showings of 'cause' and 'prejudice,' not established by Alvarez
here, federal habeas relief is unavailable when 'a state court [has] declined to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
address a prisonerùs federal claims because the prisoner had failed to meet a state
procedural requirement,' and 'the state judgment rests on independent and
adequate state procedural grounds.' Coleman v. Thompson, 501 U.S. 722, 729-730
(1991). The Supreme Court recently held that denial of habeas relief by the
California Supreme Court on the ground that the application for relief was filed
untimely was an independent and adequate state procedural ground requiring
denial of a subsequent habeas petition in federal court, overturning this court's
precedent to the contrary. Walµer v. Martin, 131 S.Ct. 1120 (2011). The California
Supreme Court denied Alvarez's petition with a citation to In re Clarµ, 855 P.2d
729 (Cal. 1993). The citation to Clarµ signals the court's conclusion that the
petition was untimely. Walµer, 131 S.Ct. at 1124.
Alvarez's petition did not qualify for equitable tolling, in any event. He did
not demonstrate an 'extraordinary circumstance' standing in his way to prevent
timely filing, under Holland v. Florida, 130 S.Ct. 2549, 2562 (2010), nor attorney
action that rose to the level of 'egregious' misconduct, as described in Spitsyn v.
Moore, 345 F.3d 796, 801 (9th Cir. 2003). See Miranda v. Castro, 292 F.3d 1063,
1066-67 (9th Cir. 2002); Frye v. Hicµman, 273 F.3d 1144, 1146 (9th Cir. 2001);
and Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000).
AFFIRMED.
2
FILED
Alvarez v. Wong, No. 09-15547 APR 05 2011
MOLLY C. DWYER, CLERK
WALLACE, Senior Circuit Judge, concurring: U.S . CO U RT OF AP PE A LS
I concur in the memorandum disposition except for the last paragraph which
is unnecessary for our decision. Walµer v. Martin decides the appeal. 131 S. Ct.
1120 (2011).
I write separately to express my disappointment that neither counsel cited
Walµer by a Federal Rule of Appellate Procedure Rule 28(j) letter and one attorney
was unaware of its existence. We rely on counsel to provide pertinent authority so
that we can maµe correct decisions. I had found Walµer myself and am perplexed
that Alvarez's counsel missed it. I am also perplexed that counsel for the State of
California failed to provide Walµer to us. At oral argument, counsel stated she was
aware of Walµer but chose not to file a 28(j) letter. Nevertheless, she was prepared
to and did argue that Walµer was controlling precedent. By failing to provide
Walµer in a 28(j) letter, the State's counsel deprived Alvarez's counsel of the
chance to respond, and thereby deprived us of possibly helpful oral argument.