FILED

NOT FOR PUBLICATION APR 05 2011

MOLLY C. DWYER, CLERK

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

FOR THE NINTH CIRCUIT

ANGEL JESUS ALVAREZ, No. 09-15547

Petitioner - Appellant, D.C. No. 5:06-cv-05027-JF

v.

MEMORANDUM *

ROBERT K. WONG,

Respondent - Appellee.

Appeal from the United States District Court for the Northern District of California Jeremy D. Fogel, District Judge, Presiding

Argued and Submitted March 14, 2011 San Francisco, California

Before: WALLACE, NOONAN, and CLIFTON, Circuit Judges.

Angel Jesus Alvarez appeals the district court's dismissal of his petition for

writ of habeas corpus as untimely. We affirm.

Absent showings of 'cause' and 'prejudice,' not established by Alvarez

here, federal habeas relief is unavailable when 'a state court [has] declined to

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. address a prisonerùs federal claims because the prisoner had failed to meet a state

procedural requirement,' and 'the state judgment rests on independent and

adequate state procedural grounds.' Coleman v. Thompson, 501 U.S. 722, 729-730

(1991). The Supreme Court recently held that denial of habeas relief by the

California Supreme Court on the ground that the application for relief was filed

untimely was an independent and adequate state procedural ground requiring

denial of a subsequent habeas petition in federal court, overturning this court's

precedent to the contrary. Walµer v. Martin, 131 S.Ct. 1120 (2011). The California

Supreme Court denied Alvarez's petition with a citation to In re Clarµ, 855 P.2d

729 (Cal. 1993). The citation to Clarµ signals the court's conclusion that the

petition was untimely. Walµer, 131 S.Ct. at 1124.

Alvarez's petition did not qualify for equitable tolling, in any event. He did

not demonstrate an 'extraordinary circumstance' standing in his way to prevent

timely filing, under Holland v. Florida, 130 S.Ct. 2549, 2562 (2010), nor attorney

action that rose to the level of 'egregious' misconduct, as described in Spitsyn v.

Moore, 345 F.3d 796, 801 (9th Cir. 2003). See Miranda v. Castro, 292 F.3d 1063,

1066-67 (9th Cir. 2002); Frye v. Hicµman, 273 F.3d 1144, 1146 (9th Cir. 2001);

and Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000).

AFFIRMED.

2

FILED

Alvarez v. Wong, No. 09-15547 APR 05 2011

MOLLY C. DWYER, CLERK

WALLACE, Senior Circuit Judge, concurring: U.S . CO U RT OF AP PE A LS

I concur in the memorandum disposition except for the last paragraph which

is unnecessary for our decision. Walµer v. Martin decides the appeal. 131 S. Ct.

1120 (2011).

I write separately to express my disappointment that neither counsel cited

Walµer by a Federal Rule of Appellate Procedure Rule 28(j) letter and one attorney

was unaware of its existence. We rely on counsel to provide pertinent authority so

that we can maµe correct decisions. I had found Walµer myself and am perplexed

that Alvarez's counsel missed it. I am also perplexed that counsel for the State of

California failed to provide Walµer to us. At oral argument, counsel stated she was

aware of Walµer but chose not to file a 28(j) letter. Nevertheless, she was prepared

to and did argue that Walµer was controlling precedent. By failing to provide

Walµer in a 28(j) letter, the State's counsel deprived Alvarez's counsel of the

chance to respond, and thereby deprived us of possibly helpful oral argument.