FILED

NOT FOR PUBLICATION SEP 02 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

JOAÏUIN H. CIRIA, No. 08-17300

Plaintiff - Appellant, D.C. No. 3:07-cv-04770-MMC

v.

MEMORANDUM *

NICHOLAS J. RUBINO; OFFICER

AISSA; JAMES CROWLEY; ARTHUR

GERRANS,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, Senior District Judge, Presiding

Argued and Submitted April 16, 2010 San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS, District Judge.**

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. California prisoner Joaquin Ciria ('Ciria') appeals the district court's

judgment dismissing his pro se 42 U.S.C. y 1983 action alleging that the San

Francisco police officers violated his constitutional rights by failing to disclose

potentially exculpatory evidence in their possession during his murder trial. This

Court appointed appellate counsel. The district court held that Ciria's claim was

barred under Hecµ v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383

(1994), because a determination that Ciria is entitled to relief under Brady v.

Maryland, 373 U.S. 83 (1963), would necessarily demonstrate the invalidity of his

conviction. The district court also held his claim was barred by the statute of

limitations, because Ciria and/or his attorney µnew or, should have discovered

through due diligence, all of the alleged injuries and their causes no later than the

conclusion of Ciria's state criminal proceedings. We have jurisdiction pursuant to

28 U.S.C. y 1291. We affirm.

A dismissal pursuant to Federal Rules of Civil Procedure Rule 12(b)6 is

reviewed de novo. North County Communication Corp. v. California Catalog &

Technology, 2010 WL 446505 ÁÁF.3dÁÁÁÁ, (9th Cir. 2010)(citing Rhoades v. Avon

Prods., Inc. 504, F.3d 1151,1156 (9th Cir. 2007).

Appellant argues that the district court erred when it held his claim was

barred by the statute of limitations because it was predicated on the erroneous

2 assumption that a criminal defendant has the burden of proof to investigate and

uncover state misconduct. Appellant argues that accepting the district court's

decision that Ciria (actual or imputed through his counsel) µnew or should have

discovered through due diligence at the time of his trial rewards prosecutorial

misconduct, circumventing Supreme Court precedent in Stricµler v. Greene, 527

U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), and Banµs v. Dretµe, 540 U.S.

669, 697, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). We disagree.

Section 1983 claim 'accrues when the plaintiff µnows or has reason to µnow

of the injury, which is the basis of the action.' Maldonando v. Harris, 370 F.3d

945,955 (9th Cir. 2004)(quoting TwoRivers v. Lewis, 174 F.3d 987,992 (9th Cir.

1999)). Two questions this Court must consider are (1) whether Appellant or his

counsel could have reasonably been expected to asµ the prosecutor for the

surveillance records and witness interview notes at the time of initial criminal

proceeding; and (2) whether the prosecutor would have disclosed the documents.

Bibeau v. Pacific Northwest Research Foundation, 188 F.3d 1105, 1108 (9th Cir.

1999). The record shows that Ciria believed, at the time of trial, he was under

surveillance between December 1989 and April 1990. ER. 28-29. This time frame

includes the night of the murder. Appellant also µnew the identity of the officers

that performed the witness interviews. Id at 32,34,91. These facts demonstrate that

3 Appellant µnew the underlying facts of his alleged constitutional injury at the time

of trial. We disagree with Appellant's assertion that he gained a factual basis of his

alleged injury in 2006 because his previous Petitions for Writ of Habeas Corpus

demonstrate that he had µnowledge of the alleged injury.

We conclude, based on these facts, that the district court correctly found that

Ciria's claim was time barred. Ciria had a factual basis for his constitutional

injury, at the latest, at the time of his trial in 1991. Applying California's one year

personal injury statute of limitations and the prisoner tolling statute, we hold that

the statute of limitations ran on February 20, 1994. See Jones v. Blanas, 393 F.3d

918,927 (9th Cir. 2004)(recognizing that California's statute of limitations for

personal injury actions is one year for injuries arising before January 1, 2003); see

also Cal. Civ. P. 352.1(a) (two year tolling provision for prisoners). Therefore,

Ciria's Section 1983 claim is untimely because it was filed after February 20,

1994.

On appeal, appellant's appointed counsel relies on a recent Supreme Court

decision dealing with the right to obtain DNA testing and other scientific evidence

not available at the time of trial. See Dist. Attorney's Office for the Third Judicial

Dist. v. Osborne,ÁÁÁÁ U.S.ÁÁÁÁ, 129 S. Ct. 2308, 175 L. Ed. 2d 38 (2009).

4 Osborne does not apply to the situation here, where the claimed exculpatory

evidence was available at the time of trial.

AFFIRMED.

5

FILED

Ciria v. Rubino, Case No. 08-17300 SEP 02 2010 Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK

U.S . CO U RT OF AP PE A LS

I concur in the result.