NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 27 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD ALAN NOLAN, No. 20-55714

Plaintiff-Appellee, D.C. No. 8:18-cv-00847-FMO (MAA) v.

CHARLES CALLAHAN, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Hon. Fernando M. Olguin, Presiding

Submitted August 3, 2021** Pasadena, California

Before: PAEZ, CALLAHAN, and BENNETT, Circuit Judges.

Richard Nolan appeals the district court’s dismissal of his petition for writ of

habeas corpus. The district court dismissed the petition for procedural default

under California’s timeliness rule. We have jurisdiction under 28 U.S.C. § 1291

* 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). and § 2253, and we affirm.

“We review de novo a district court’s dismissal of a habeas petition on

timeliness grounds.” Trigueros v. Adams¸ 658 F.3d 983, 987 (9th Cir. 2011). We

review the district court’s findings of fact for clear error. Poyson v. Ryan¸ 879

F.3d 875, 887 (9th Cir. 2018).

California’s timeliness requirement is an independent and adequate state

procedural rule which will bar federal relief if violated. Walker v. Martin, 562

U.S. 307, 316-17 (2011); Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003).

When a petitioner violates a state’s procedural rule, “federal habeas review is

barred unless the prisoner can demonstrate cause for the procedural default and

actual prejudice, or demonstrate that the failure to consider the claims will result in

a fundamental miscarriage of justice.” Bennett, 322 F.3d at 580 (citation omitted).

California’s timeliness rule provides that a petitioner must file his or her

habeas petition “without substantial delay, as measured from the time the petitioner

or counsel knew, or reasonably should have known, of the information offered in

support of claim and legal basis for claim.” Walker¸ 562 U.S. at 312 (internal

quotation marks and citations omitted).

Nolan’s state habeas petition claimed ineffective assistance of trial counsel,

trial court error, and ineffective assistance of appellate counsel. We address the

timeliness of these claims separately. First, Nolan was aware of his claim for

2 ineffective assistance of trial counsel and trial court error at the end of the trial

court proceedings in June 2013 yet delayed filing his petition asserting such claims

until May 2018. Indeed, the superior court found that the five- year delay violated

California’s timeliness rule. Similar delays have been held to be substantial and to

constitute grounds for holding that a habeas claim was procedurally barred. See

Walker, 562 U.S. at 310 (recognizing a California state court’s decision to dismiss

a petition as untimely because the petitioner filed their petition five years after

conviction).

Second, Nolan was aware of his claim for ineffective assistance of appellate

counsel in February 2017, and no later than in May 2017 when the ninety-day

period for filing a petition for certiorari expired, yet he delayed filing his state

habeas petition, which included his claim of ineffective assistance of appellate

counsel, until May 17, 2018. The superior court determined that this one-year

delay violated California’s timeliness rule. This is consistent with the Supreme

Court’s opinion in Evans v. Chavis, 546 U.S. 189, 201 (2006) (“We have found no

authority suggesting, nor found any convincing reason to believe, that California

would consider an unjustified or unexplained 6-month filing delay ‘reasonable.’”).

Because his state habeas petition was untimely, Nolan must satisfy cause and

prejudice to overcome the procedural default. See Murray v. Carrier, 477 U.S.

478, 485 (1986).

3 Nolan contends that he had cause to overcome his delay. Nolan cites

California’s law barring successive petitions as justification for delaying five years

to file his trial court claims. California law states “[a] successive petition

presenting additional claims that could have been presented in an earlier attack on

the judgment is, of necessity, a delayed petition.” In re Clark, 855 P.2d 729, 742

(Cal. 1993). Nolan argues that if he had filed his petition with claims for

ineffective assistance of trial counsel and trial court error before the California

Supreme Court denied review of his appeal, he would have forfeited his

opportunity to later file a petition for ineffective assistance of appellate counsel.

We disagree. Although California law prefers petitioners to file a single

petition with all related claims, California courts will not reject a successive

petition simply because it is successive. See id. at 745; see also In re Friend, 489

P.3d 309, 315 (Cal. 2021). Rather, a California court will first ask whether the

habeas petitioner who files a second or subsequent petition has adequately justified

his or her failure to present his or her claims in an earlier petition. Id. at 318.

Nolan could have filed a petition with claims for ineffective assistance of trial

counsel and trial court error immediately after his trial without forfeiting a future

ineffective assistance of appellate counsel claim.

Even accepting that Nolan could not bring his ineffective assistance of

appellate counsel claim until May 2017, he must show cause for his failure to file

4 his habeas petition before May 2018.

Nolan’s only explanation for the delay, that he was without habeas counsel

for eleven months, is insufficient to show cause. California law provides, “A

petitioner will be expected to demonstrate due diligence in pursuing potential

claims. If a petitioner had reason to suspect that a basis for habeas corpus relief

was available, but did nothing to promptly confirm those suspicions, that failure

must be justified.” Id. at 326 (quoting Clark, 855 P.2d at 745). Nolan has not

shown due diligence. Nolan does not deny that he suspected ineffective assistance

of appellate counsel in May 2017 and does not explain what efforts, if any, he took

to file his habeas petition. Moreover, it is by no means clear that Nolan had a right

to counsel in his state-post conviction proceedings. See Davila v. Davis, 137 S.Ct.

2058, 2062-63 (2017).

Because Nolan has failed to show cause for his delay in filing his state

habeas petition, we need not address whether Nolan suffered actual prejudice. See

Thomas v. Lewis, 945 F.2d 1119, 1123 n.10 (9th Cir. 1991). The district court’s

dismissal of Nolan’s habeas petition is AFFIRMED.

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