Jesus Lua v. M. Martel

MEMORANDUM

Jesus Lua appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. Lua argues the court should toll the statute of limitation from January 12 to June 8, 2006 — the period of time between the denial of Lua’s third state habeas petition and the filing of his fourth. We review de novo, Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003), and we affirm.

The one-year statute of limitation contained in the Antiterrorism and Effective Death Penalty Act (“AEDPA”) is subject to both statutory and equitable tolling. Habeas petitioners are entitled to statuto ry tolling of the time “during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244 (d)(2). This section also allows for interval tolling between state habeas petitions, but only if the next petition is timely under state law. Carey v. Saffold, 536 U.S. 214, 225 , 122 S.Ct. 2184 , 153 L.Ed.2d 260 (2002).

Under California law, Lua was required to file his fourth petition within a reasonable time of the denial of his third. He did not. Instead, he waited nearly five months to file…