Edward Ontiveros v. R. Subia

ORDER

The memorandum disposition filed on January 28, 2010 is hereby withdrawn. A new memorandum disposition is filed concurrently herewith.

Appellant Ontiveros filed a pro se petition for panel rehearing on February 8, 2010, which was deficient because he has appointed counsel. That petition for panel rehearing is hereby rendered moot.

MEMORANDUM

Edward Ontiveros, a California state prisoner, sought federal habeas relief to challenge the parole board’s decision to deny him parole. The district court dismissed the case, finding that the one-year deadline for filing under the Antiterrorism and Effective Death Penalty Act (AEDPA) had passed. See 28 U.S.C. § 2244 (d)(1). Ontiveros claims that his petition was filed within the one-year deadline because (1) the factual predicate date should not begin until after the 30-day period for gubernatorial review has elapsed, and (2) his claim was “pending,” and thus tolled, see § 2244(d)(2), for the period between the factual predicate date and his initial state filing. Ontiveros also claims that he is entitled to equitable tolling. This court has jurisdiction under 28 U.S.C. §§ 1291 , 2253. As the facts and procedural history are familiar…