Artis Gipson v. Charles Ryan

MEMORANDUM

Artis Gipson appeals the district court’s dismissal of his 28 U.S.C. § 2254 petition as untimely under the Antiterrorism and Effective Death Penalty Act of 1996. Reviewing de novo, see Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir.2006), we affirm.

The parties agree that AEDPA’s one-year statute of limitations began to run on July 13, 2006, when Gipson’s 90-day window for petitioning the U.S. Supreme Court for certiorari expired. See 28 U.S.C. § 2244 (d)(1). Gipson is correct that he is entitled to statutory tolling while he pursued timely state post-conviction relief—that is, from when Gipson’s conviction became final on July 13, 2006 until October 25, 2007, when the time for Gipson to file a petition for review for post-conviction relief (after receiving one extension of time) expired. See id. § 2244(d)(2). Gipson filed his federal habeas petition one year and 122 days later, on February 23, 2009.

Gipson argues that he is entitled to equitable tolling of that one year and 122 days based on (1) the state trial court’s inexplicable decision to forward Gipson’s pro se transcript request to his appointed counsel, with whom Gipson allegedly could not communicate, and…