Filemon Arellano v. Ben Curry

MEMORANDUM

Filemon Arellano appeals the district court’s denial of his April 2007 petition for a writ of habeas corpus. See 28 U.S.C. § 2254 . We affirm.

The district court determined that the petition was barred by the statute of limitations. See 28 U.S.C. § 2244 (d)(1). Arellano asserts that the statute did not begin to run when the state criminal judgment became final, but rather at a later date when he discovered the factual predicate “through the exercise of due diligence.” He also asserts that he was entitled to equitable tolling. See Holland v. Florida, — U.S. -, -, 130 S.Ct. 2549, 2562 , 177 L.Ed.2d 130 (2010). We disagree. Our review of the record makes it apparent that, as the district court decided, by the year 2000 at the latest, Arellano should have discovered his claim that, although directed to do so, prior counsel had not filed his notice of appeal. Indeed, Arellano might well have been expected to discover that claim at an earlier date, but using the year 2000 does give him the benefit of the doubt. We are unable to hold that Arellano’s delay between then and April of 2007 can be excused on the basis that he was sufficiently diligent for either delayed statute…