Hung Viet Vu v. Richard Kirkland

I. Background

Vu was convicted in California Superior Court of first degree murder and

assault with a firearm. He was sentenced to life without the possibility of parole.

On direct appeal his conviction and sentence were affirmed, with the exception of

the imposition of a fine and certain clerical errors. On March 15, 2006, the

California Supreme Court denied his petition for review. Vu’s conviction became

final on June 13, 2006. He filed a state habeas petition on February 7, 2007, which

was denied on May 10, 2007.

Vu filed a pro se federal habeas petition on March 14, 2007, which referred

to “[a]ttachments setting forth all factual and legal grounds on which relief is

sought.” The attachment, however, was missing, and the petition itself did not

allude to the claims it sought to raise or the factual grounds on which they were

based. The magistrate judge later found that Vu had “meant to attach his state

appellate briefing to the original petition.” Respondent Richard Kirkland has not

objected to this finding and the district court did not disagree with it.

On April 24, 2007, a magistrate judge appointed counsel to represent Vu in

federal court. Beginning on May…

dissenting:

Vu raised four issues on appeal. He argues that: (1) his original petition sufficiently stated claims for relief and the amended petition could relate back to it; (2) the district court erred by not expanding the record sua sponte; (3) the district court acted in an intrinsically contradictory way by both summarily dismissing Vu’s original petition and granting a certificate of appealability; and (4) because the magistrate judge failed to follow the intent of the Habeas Rules, the district court should have accepted Vu’s amended petition as timely As the majority outlines, the first three arguments lack merit and warrant no discussion here. In my view, the fourth argument also lacks merit. I therefore dissent.

This Court has stated that, “arguments] ... raised for the first time on appeal [are] waived.” Man-Seok Choe v. Torres, 525 F.3d 733 , 741 n. 9 (9th Cir.2008); see also Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th Cir.1996) (“Generally, an appellate court will not hear an issue raised for the first time on appeal.”). Consistent with this precedent, Vu waived the fourth issue by not arguing it to the district court level.

In response to the government’s…

MEMORANDUM *

Petitioner Hung Viet Vu appeals the dismissal of his amended habeas corpus petition on grounds of untimeliness. We vacate the dismissal and remand for further proceedings.

I. Background

Vu was convicted in California Superior Court of first degree murder and assault with a firearm. He was sentenced to life without the possibility of parole. On direct appeal his conviction and sentence were affirmed, with the exception of the imposition of a fine and certain clerical errors. On March 15, 2006, the California Supreme Court denied his petition for review. Vu’s conviction became final on June 13, 2006. He filed a state habeas petition on February 7, 2007, which was denied on May 10, 2007.

*441 Vu filed a pro se federal habeas petition on March 14, 2007, which referred to “[attachments setting forth all factual and legal grounds on which relief is sought.” The attachment, however, was missing, and the petition itself did not allude to the claims it sought to raise or the factual grounds on which they were based. The magistrate judge later found that Vu had “meant to attach his state appellate briefing to the original petition.” Respondent Richard Kirkland has not…