FILED
NOT FOR PUBLICATION
AUG 27 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT JOE GONZALES, No. 16-55846
Petitioner-Appellant, D.C. No. 2:15-cv-01941-MRW
v.
MEMORANDUM* and ORDER
KELLY SANTORO, Acting Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Michael R. Wilner, Magistrate Judge, Presiding
Argued and Submitted August 9, 2018
Pasadena, California
Before: TASHIMA and CHRISTEN, Circuit Judges, and RUFE,** District Judge.
Petitioner Robert Joe Gonzales appeals a district court order dismissing as
untimely his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Cynthia M. Rufe, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we review de novo. Curiel v.
Miller, 830 F.3d 864, 868 (9th Cir. 2016) (en banc). We affirm.
1. Gonzales’s request for judicial notice, Dkt. No. 19, is GRANTED.
See Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (citing Fed. R. Evid.
201(f)).
2. Gonzales is not entitled to statutory tolling under 28 U.S.C.
§ 2244(d)(2) because the California Court of Appeal deemed his petition untimely
under state law by citing In re Clark, 5 Cal. 4th 750, 765 (1993), as an alternative
to its ruling on the merits. See Curiel, 830 F.3d at 868–69. Although, as Gonzales
argues, the pincited page of Clark describes three procedural rules including the
timeliness rule, Clark is understood primarily to represent California’s timeliness
rule. See id.; Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011). To the extent
Clark signifies a different California rule, that rule is the one against second or
successive petitions, see Curiel, 830 F.3d at 877 n.3 (Bybee, J., concurring), which
Gonzales concedes is not relevant here. The citation to Clark establishes that the
California Court of Appeal deemed Gonzales’s petition untimely, and this court
must defer to that determination.
3. Gonzales is not entitled to equitable tolling. The self-styled tolling
notice that Gonzales filed in a different case—the dismissal of which Gonzales did
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not appeal—was not a protective petition under Pace v. DiGuglielmo, 544 U.S.
408, 416 (2005), and the district court in that case was not obligated to treat it as
one. Consequently, Gonzales’s reliance on Jefferson v. Budge, 419 F.3d 1013 (9th
Cir. 2005), and Smith v. Ratelle, 323 F.3d 813 (9th Cir.2003), to obtain equitable
tolling in this case is unavailing.
4. Gonzales does not identify a date from which the statute of limitations
should be calculated if analyzed under 28 U.S.C. § 2244(d)(1)(D). We decline
Gonzales’s invitation to remand for further factual development. Assuming the
date on which Gonzales received his trial transcripts qualifies for treatment under
§ 2244(d)(1)(D), the question of when he obtained those transcripts is not “highly
fact-dependent.” Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en
banc) (per curiam). Gonzales was capable of submitting dispositive evidence of
the date in the form of a declaration, but he did not. Under the circumstances, we
conclude that a remand is unwarranted.
AFFIRMED.
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