Taylor
Taylor v. Mule Creek State Prison
Opinion
Lead Opinion
MEMORANDUM ***
Roberto A. Taylor appeals an order dismissing his 28 U.S.C. § 2254 petition as time-barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244 (d). We have jurisdiction under 28 U.S.C. §§ 1291 & 2253, and affirm.
*903 A district court’s decision to dismiss a writ of habeas corpus on statute of limitations grounds is reviewed de novo. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999).
Taylor’s first section 2254 petition did not toll the statute of limitations under section 2244(d)(2). See Duncan v. Walker, 533 U.S. 167 , 121 S.Ct. 2120, 2129 , 150 L.Ed.2d 251 (2001) (limiting statutory tolling under section 2244(d)(2) to state — not federal — petitions).
As for equitable tolling, because we agree that the first petition contained no exhausted federal claims, Taylor is not entitled to such tolling during the pendency of that first petition. Although Taylor argued that the state trial court failed to instruct sua sponte on a lesser included offense, he did not “fairly present” to the California Supreme Court the federal claims that he attempted to bring in his section 2254 petitions (claims that his federal constitutional rights under the…