Miller v. Warden of Avenal State Prison

MEMORANDUM **

California state prisoner Marion Franklyn Miller, Jr. appeals from the district court’s judgment denying as untimely his habeas petition under 28 U.S.C. § 2254 . We have jurisdiction under 28 U.S.C. § 2253 . We review de novo the district court’s untimeliness decision, see Redd v. McGrath, 343 F.3d 1077, 1080 (9th Cir.2003), and we affirm.

Respondent contends that this court lacks jurisdiction because Miller did not obtain a Certificate of Appealability. This contention is foreclosed by Rosas v. Nielsen, 428 F.3d 1229, 1231-32 (9th Cir.2005) (per curiam).

Miller contends the issues raised in respondent’s answering brief were waived because the brief was untimely filed. We disagree, because the docket reflects that respondent obtained an extension of time to file the brief, and mailed the brief before the extended deadline date. See Fed. R.App. P. 25(a).

Miller also contends the district court erred by denying as untimely his § 2254 petition. We disagree. The one-year limitations period began to run on the date Miller discovered the factual predicate for his claim, in other words, the date his administrative appeal was denied. See 28 U.S.C. § 2244 (d)(1)(D); Redd,…