FILED
NOT FOR PUBLICATION FEB 02 2010
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS
ARTHUR TORLUCCI No. 07-56794
Petitioner - Appellant, D.C. No. CV-04-09878-GHK
v.
MEMORANDUM *
MICHAEL S. EVANS
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted December 7, 2009
Pasadena, California
Before: PREGERSON and PAEZ, Circuit Judges, and MAHAN,** District Judge.
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable James C. Mahan, United States District Judge for the District of
Nevada, sitting by designation.
Petitioner-Appellant Arthur Torlucci (hereinafter “petitioner”), a California
state prisoner, appeals the district court’s finding that his 28 U.S.C. § 2254 habeas
corpus petition is time-barred by the statute of limitations created by Antiterrorism
and Effective Death Penalty Act of 1996’s (hereinafter “AEDPA”). We have
jurisdiction pursuant to 28 U.S.C. § 2253.
We review de novo a district court’s decision to dismiss a § 2254 habeas
petition as untimely. Raspberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006);
King v. Roe, 340 F.3d 821, 822 (9th Cir. 2003). Findings of fact underlying a claim
for tolling the limitation period are reviewed for clear error. Raspberry, 448 F.3d at
1153.
Because the parties are well acquainted with the facts and procedural history
of this case, no further elaboration is necessary. For the reasons discussed below,
we affirm.
I. Interval Tolling
We agree with the district court that petitioner is not entitled to interval
tolling. Petitioner’s conviction became final on July 21, 1998. Absent tolling, the
statute of limitations would have expired on July 21, 1999. Petitioner’s first filing
was 331 days after his judgment became final, and his second filing was eight
months after that. As discussed below, petitioner is not entitled to interval tolling
for either of these periods; therefore, his federal petition, filed five years later, is
untimely.
Petitioner’s first habeas petition, filed in the California Court of Appeal on
April 17, 1998, and summarily denied on May 18, 1998, was incapable of tolling
the statute of limitations because it was filed before petitioner’s conviction was
final. See 28 U.S.C. §2244(d)(1). Petitioner is not entitled to interval tolling
for the 331 day gap between the filing of his April 17, 1998, petition and the filing
of his April 15, 1999, petition because he raised different claims in each petition.
Gaston v. Palmer, 417 F.3d 1030, 1043 (9th Cir. 2005) (holding “a California
habeas applicant is not entitled to interval tolling if he abandons all of his claims in
his first application and his second application sets forth new and different
claims”).
Petitioner is likewise not entitled to tolling for the eight month interval
between the Los Angeles County Superior Court’s denial of petitioner’s April 15,
1999, habeas petition and the filing of his January 19, 2000, California Court of
Appeal habeas petition because petitioner failed to point to particular
circumstances to explain the delay. See Evans v. Chavis, 546 U.S. 189, 201 (2006)
(holding an unjustified six month delay in filing could not “fall within the scope of
the federal statutory word ‘pending’”). See also In re Clark, 855 P.2d 729, 738
(Cal. 1993). Further, petitioner failed to point to particular circumstances to
explain the substantial delay, as the California Supreme Court requires. In re
Clark, 855 P.2d 729, 738 (Cal. 1993).
Additionally, petitioner’s state habeas petitions, filed after his January 19,
2000, habeas petition, could not toll the statute of limitations because it had already
expired. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
II. Equitable Tolling
We also agree with the district court’s finding that petitioner is not
entitled to equitable tolling for the gaps between his filings because he suffers from
bipolar disorder. The district court’s decision was based upon: 1) the magistrate
judge’s extensive review of petitioner’s mental health records between 1995 and
2005 (some 775 pages); 2) petitioner’s expert’s report; and 3) the magistrate
judge’s subsequent determination that petitioner was competent. Indeed,
petitioner’s mental health evaluations reflected, and his own expert testified, that
petitioner’s thought process was within normal limits during the pertinent time
period.
Consequently, we affirm the district court’s dismissal of petitioner’s federal
habeas petition as untimely.
AFFIRMED.