FILED
NOT FOR PUBLICATION JUN 20 2011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
ALEX MONETTE, No. 09-16095
Petitioner - Appellant, D.C. No. 3:08-cv-02880-PJH
v.
MEMORANDUM *
NICK DAWSON, Warden, Avenal State
Prison,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
California state prisoner Alex Monette appeals from the district court’s
dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
*
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).
Monette contends that the district court erred by concluding that the AEDPA
one-year statute of limitations began to run when his drug possession conviction
became final, rather than when the parole board’s denial of parole became final on
July 6, 2006. He argues that, until the parole board’s decision was final, he could
not have known the factual basis for the prejudice prong of his ineffective
assistance of counsel claim. See 28 U.S.C. § 2244(d)(1)(D).
To establish prejudice in a guilty plea case, a petitioner need only show that
but for his counsel’s alleged erroneous advice, he likely would not have pleaded
guilty. See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (“[I]n order to satisfy the
‘prejudice’ requirement, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.”). Accordingly, by the time his drug
possession conviction became final, Monette knew, or through due diligence could
have known, the factual basis for both prongs of his ineffective assistance of
counsel claim. See 28 U.S.C. § 2244(d)(1)(A) & (D).
We decline to consider Monette’s equitable tolling argument because he did
not raise that issue before the district court. See United States v. Pimentel-Flores,
339 F.3d 959, 967 (9th Cir. 2003) (“Issues not presented to the district court cannot
2 09-16095
generally be raised for the first time on appeal”) (internal quotation marks and
citations omitted).
AFFIRMED.
3 0 9 -1 6 0 9 5