NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 1 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KELLY FRITHIOF SUNDBERG, No. 19-55371

Petitioner-Appellant, D.C. No. 3:16-cv-03127-WQH-AGS v.

HAROLD OREOL, Executive Director of MEMORANDUM* Patton State Hospital,

Respondent-Appellee.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Submitted March 31, 2020** Pasadena, California

Before: BEA and BADE, Circuit Judges, and McCALLA,*** District Judge.

Kelly Sundberg appeals the dismissal of his petition for writ of habeas

corpus. The district court entered a certificate of appealability pursuant to 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jon P. McCalla, United States District Judge for the Western District of Tennessee, sitting by designation. U.S.C. § 2253(c). We have jurisdiction under 28 U.S.C. § 1291, review de novo,

Stewart v. Cate, 757 F.3d 929, 934 (9th Cir. 2014), and affirm.

1. Sundberg does not qualify for equitable tolling, and his habeas

petition was time barred because it was not filed within the one-year limitations

period prescribed by 28 U.S.C. § 2244(d)(1). A statute of limitations may be

equitably tolled if a petitioner meets two elements: “‘(1) that he has been pursuing

his rights diligently, and (2) that some extraordinary circumstance stood in his

way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)

(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). To satisfy the diligence

requirement, the petitioner “must show that he has been reasonably diligent in

pursuing his rights . . . up to the time of filing his claim in federal court.” Smith v.

Davis, 953 F.3d 582, 598–99 (9th Cir. 2020) (en banc).

Here, the one-year limitations period started on May 6, 1999, when the

deadline for filing a direct appeal expired. See 28 U.S.C. § 2244(d)(1)(A).

Sundberg’s federal habeas petition was filed more than seventeen years later, on

December 19, 2016. Sundberg cannot show that he diligently pursued his rights

during the nearly six-year period from July 2006 to May 2012, the time beginning

after his second California habeas petition was denied and continuing until he filed

his third habeas petition in the superior court. Nor can he show that he diligently

pursued his rights during the four years between June 2012 and July 2016, starting

2 after his third California habeas petition was denied and lasting until he filed his

fourth petition in the superior court. Sundberg’s failure to pursue his rights

diligently in these multi-year periods, which collectively lasted a decade, is

conclusive that he failed to pursue his rights diligently “up to the time of filing his

claim in federal court.” Smith, 953 F.3d at 599.

2. Sundberg does not qualify for the miscarriage of justice exception to

the one-year limitations period in 28 U.S.C. § 2244(d)(1). This exception applies

only when the habeas petitioner’s claim falls within “a severely confined category:

cases in which new evidence shows ‘it is more likely than not that no reasonable

juror would have convicted [the petitioner]’” in light of the new evidence.

McQuiggin v. Perkins, 569 U.S. 383, 394–95 (2013) (quoting Schlup v. Delo, 513

U.S. 298, 329 (1995)). A successful claim under the miscarriage of justice

exception “requires a petitioner ‘to support his allegations of constitutional error

with new reliable evidence—whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence—that was not

presented at trial.’” Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011) (en banc)

(quoting Schlup, 513 U.S. at 324). Procedural violations alone do not trigger this

exception to the limitations period, and “[w]ithout any new evidence of innocence,

even the existence of a concededly meritorious constitutional violation is not in

itself sufficient to establish a miscarriage of justice that would allow a habeas court

3 to reach the merits of a barred claim.” Schlup, 513 U.S. at 316; see also Johnson v.

Knowles, 541 F.3d 933, 937 (9th Cir. 2008).

Sundberg’s invocation of the miscarriage of justice exception fails because

he complains only of a due process violation and presents no new evidence that he

was innocent of attempted murder. Moreover, his due process argument fails on its

own terms. The bifurcated bench trial that assumed Sundberg’s sanity during the

guilt phase, before addressing in the sanity phase whether he was not guilty by

reason of insanity, see Cal. Penal Code § 1026(a), did not result in a conclusive

presumption that Sundberg harbored the requisite mental state to commit murder.

See People v. Mills, 55 Cal. 4th 663, 681 (2012) (“The defendant is presumed sane

[in the guilt phase] for procedural purposes, not for any evidentiary purpose.”).

This case is readily distinguishable from Patterson v. Gomez, 223 F.3d 959, 966–

67 (9th Cir. 2000), where the issue was a confusing jury instruction and not the

overall validity of the process by which California courts may decide a defendant’s

factual guilt before addressing whether the defendant was not guilty by reason of

insanity.

3. Denying Sundberg’s habeas petition as untimely does not violate the

Suspension Clause. As we have previously held, “[t]he one-year limitation [in 28

U.S.C. § 2244(d)(1)] does not violate the Suspension Clause because it is

not jurisdictional and may be subject to equitable tolling.” Green v. White, 223

4 F.3d 1001, 1003–04 (9th Cir. 2000). Sundberg was afforded the same opportunities

as all other petitioners to have the filing deadline equitably tolled, or excused to

avoid a miscarriage of justice, had he met the requirements for either form of

relief.

AFFIRMED.

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