Juan Flores , Jr. v. Matthew Cate

FILED

NOT FOR PUBLICATION JUL 25 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN FLORES, JR., No. 10-55788

Petitioner - Appellant, D.C. No. 8:09-CV-01447-DMG-

JEM

v.

MATTHEW L. CATE, Secretary of the MEMORANDUM* California Department of Corrections and Rehabilitation,

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Argued and Submitted July 10, 2013 Pasadena, California

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.

Petitioner appeals the district court’s dismissal, as untimely, of his petition

for a writ of habeas corpus under 28 U.S.C. § 2254. Reviewing de novo, Noble v.

Adams, 676 F.3d 1180, 1181 (9th Cir. 2012), we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Petitioner’s underlying conviction became final on June 10, 2008, ninety

days after the California Supreme Court denied review. Without…

dissenting:

I disagree with the majority that the California Supreme Court’s citation to Swain indicates that it considered Flores’s state habeas petitions untimely. A Swain citation does not generally indicate untimeliness. See Cross v. Sisto, 676 F.3d 1172, 1178 (9th Cir.2012). California courts instead “cit[e] the controlling decisions, i.e., [In re] Clark [, 5 Cal.4th 750 , 21 Cal.Rptr.2d 509 , 855 P.2d 729 (1993) ] and [In re ] Robbins [, 18 Cal.4th 770 , 77 Cal.Rptr.2d 153 , 959 P.2d 311 (1998)]” to signal untimeliness. Walker v. Martin, - U.S. -, 131 S.Ct. 1120, 1124 , 179 L.Ed.2d 62 (2011). When California courts cite Swain and Duvall together, as the California Supreme Court did here, that suggests a different procedural bar applies: failure to allege facts with sufficient particularity. See Stancle v. Clay, 692 F.3d 948, 958 (9th Cir.2012); Cross, 676 F.3d at 1176-77 ; Gaston v. Palmer, 417 F.3d 1030, 1038-39 (9th Cir.2005), as amended by order, 447 F.3d 1165 (9th Cir.2006).

Our decision in Trigueros v. Adams, 658 F.3d 983 (9th Cir.2011), controls the outcome of this case. There, we inferred that the California Supreme Court had overruled a lower court’s untimeliness…

MEMORANDUM *

Petitioner appeals the district court’s dismissal, as untimely, of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 . Reviewing de novo, Noble v. Adams, 676 F.3d 1180, 1181 (9th Cir.2012), we affirm.

Petitioner’s underlying conviction became final on June 10, 2008, ninety days after the California Supreme Court denied review. Without tolling, the one-year limitation period provided by 28 U.S.C. § 2244 (d)(1) would have expired on June 10, 2009. Petitioner filed his federal habe-as petition on December 3, 2009.

1. The statutory toll provided by 28 U.S.C. § 2244 (d)(2) applies only if the petitioner “properly filed” an application for collateral review in state court. A state habeas petition is not “properly filed” for these purposes if the state court ruled that the petition was untimely as a matter of state law. Pace v. DiGuglielmo, 544 U.S. 408, 417 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005).

Here, the California Superior Court held that Petitioner’s state habeas petition was untimely. The California Court of Appeal denied his petition without explanation or citation. The California Supreme Court denied the petition for review without explanation…