Tatarinov

MEMORANDUM **

Petitioner Dimitri Valeryevich Tatarinov appeals the district court’s denial of his federal habeas petition as time-barred under the one-year statute of limitations set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244 (d)(1). The California Court of Appeal dismissed Tatarinov’s appeal on April 28,1997, the decision became final on May 28,1997, 1 and the one-year limitations period expired on May 29, 1998. 2 Tatarinov’s federal habeas petition was not filed until October 11, 2002, and is therefore time barred unless he is entitled to tolling.

Tatarinov argues that he is entitled to tolling under 28 U.S.C. § 2244 (d)(1)(D) because he could not have discovered the factual predicate of his ineffective assistance of counsel claim until either 2000 or 2001. However, Tatarinov’s own declaration stated that he discovered his attorney’s deficient performance no later than mid-to-late 1998. At that point, Tatarinov had a colorable ineffective assistance of counsel claim and the AEDPA statute of limitations clock started ticking. See Hasan v. Galaza, 254 F.3d 1150 , 1154 n. 3 (9th Cir.2001) (“This is not to say that [petitioner]…