FILED
NOT FOR PUBLICATION JAN 02 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MANUEL FLORENCE SANCHEZ, No. 08-17706
Petitioner - Appellant, D.C. No. 2:06-cv-02898-GEB-GGH
v.
MEMORANDUM *
JAMES A. YATES, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted October 18, 2012
San Francisco, California
Before: D.W. NELSON, MURGUIA, and CHRISTEN, Circuit Judges.**
Manuel Sanchez appeals from the district court’s dismissal of his federal
habeas claims on the ground that the Anti-Terrorism and Effective Death Penalty
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** Judge Christen was drawn to replace Judge Betty Binns Fletcher.
Judge Christen read the briefs, reviewed the record, and listened to oral arguments
held October 18, 2012.
Act’s (“AEDPA”) statute of limitations bars his claim. We review de novo the
denial of a 28 U.S.C. § 2254 habeas petition as untimely. Gaston v. Palmer, 417
F.3d 1030, 1034 (9th Cir. 2005), modified on other grounds, 447 F.3d 1165. This
court has jurisdiction over the appeal by 28 U.S.C. § 1291.
Sanchez failed to file his habeas claims within the time period set out by 28
U.S.C. § 2244(d) and did not exhibit the diligence required for a grant of equitable
tolling. Therefore, the district court’s dismissal is AFFIRMED.
I. FACTUAL HISTORY
The parties to this case are aware of the facts that underlie both Sanchez’s
conviction and his habeas claims; we recite only the facts pertinent to this appeal.
Sanchez had one year to file his habeas claims in district court beginning
April 26, 2005, the day his state conviction became final. Id. § 2244(d)(1)(A).
Roughly six months later, on October 28, 2005, Sanchez filed his first state habeas
petition, successfully tolling AEDPA’s one year limitations period for as long as
Sanchez pursued his properly filed state habeas claims. Id. § 2244(d)(2). On April
6, 2006, Sanchez’s second state habeas petition was denied by the California Court
of Appeal. The Supreme Court of California dismissed Sanchez’s third state
habeas petition as untimely, and thus not properly filed, by citing In re Robbins, 18
Cal. 4th 770, 780 (1998). See Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir.
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2007). On December 19, 2006, Sanchez filed his federal habeas claims in district
court. The district court dismissed Sanchez’s petition as untimely and he appealed
to this court.
As the basis for his equitable tolling claim, Sanchez claims not to have
received a complete copy of his trial transcripts from his trial counsel until
February 10, 2006.
II. STATUTORY TOLLING
The district court correctly ruled that § 2244(d) barred Sanchez’s federal
habeas claim because the one-year limitations period was not tolled during the
pendency of his third state habeas petition. Statutory tolling is only available for
properly filed state habeas claims. § 2244(d)(2). This Court has previously held
that a citation to page 780 of In re Robbins signifies a “clear ruling” that a petition
was untimely. Thorson, 479 F.3d at 645. Because Sanchez’s final state habeas
petition was adjudged untimely it was not properly filed and therefore did not
trigger statutory tolling under § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408,
417 (2005).
Sanchez qualified for statutory tolling for the 161 days between the filing of
his first state petition on October 28, 2005, and the denial of his second claim on
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April 6, 2006.1 The extra time gained through statutory tolling extended the
deadline for Sanchez to file his federal habeas petition from April 27, 2006, to
October 5, 2006. Sanchez did not file his pro se habeas petition in federal district
court until December 19, 2006, more than two months late. Sanchez’s petition was
barred by § 2244(d) unless he is eligible for equitable tolling.
III. EQUITABLE TOLLING
Sanchez claims that he is entitled to equitable tolling either because he did
not receive his complete trial transcripts until February 10, 2006, or because he
could not have expected the California Supreme Court to deny his state habeas
claims on timeliness grounds.
Equitable tolling is only available where a petitioner diligently pursued his
rights but some extraordinary circumstance stood in his way. Holland v. Florida,
____ U.S. ____, 130 S. Ct. 2549, 2562 (2010) (citing Pace, 544 U.S. at 418). The
rights referred to are the petitioner’s federal rights, so Sanchez must demonstrate
he diligently pursued his federal claims. Id. at 2563.
1
The government argues that Sanchez’s state claims were never
properly filed because the California Supreme Court’s dismissal on timeliness
grounds could only refer to the six months Sanchez waited to file his first state
habeas petition. Because this argument would not change the outcome of
Sanchez’s appeal, we do not reach it.
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Sanchez received the complete trial transcripts more than ten months before
he filed his federal habeas petition. During those ten months, Sanchez could have
filed a petition in district court to protect his federal habeas rights against an
occurrence such as this one. Rhines v. Weber, 544 U.S. 269, 277 (2005). Because
Sanchez did not file his federal habeas petition until ten months after the alleged
impediment to filing was removed, he failed to demonstrate the “reasonable
diligence” required for equitable tolling of § 2244(d)’s limitations period.
Holland, 130 S. Ct. at 2565. We do not reach the question whether Sanchez’s
initial lack of access to the transcripts was an extraordinary circumstance.
Sanchez does not qualify for equitable tolling because he was surprised by
the California Supreme Court’s ruling on timeliness grounds. When a state post-
conviction petition is untimely under state law, “‘that [is] the end of the matter’ for
purposes of § 2244(d)(2).” Pace, 544 U.S. at 414 (quoting Carey v. Saffold, 536
U.S. 214, 226 (2002) (alteration in original)). A state petitioner bears the risk that
he may “try[] in good faith to exhaust state remedies . . . only to find out at the end
that he was never ‘properly filed.’” Id. at 416.
AFFIRMED.
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