Appeal from the United States District Court for the Central District of California, George H. King, District Judge, Presiding, D.C. No. 2:07-cv-02142-GHK-RC.
The opinion of the court was delivered by: Tallman, Circuit Judge
Argued and Submitted May 6, 2010 -- Pasadena, California.
Before: Diarmuid F. O'Scannlain and Richard C. Tallman, Circuit Judges, and Frederic Block, District Judge.*fn1
Petitioner-Appellant Del Banjo, a California prisoner, appeals an order dismissing his federal habeas corpus petition as untimely pursuant to 28 U.S.C. § 2244(d). The district court determined that Banjo's state court petition for habeas corpus was no longer "pending" during the five-month period between the dismissal of his original petition in the Los Angeles County Superior Court and the filing of a successive petition in the same court, resulting in the expiration of his time to bring a federal habeas petition. Banjo argues that, pursuant to California law, his successive petition was timely, because the fact that he was seeking new evidence to support his claims explained and justified the delay. Thus, he contends that the federal habeas statute of limitation should toll. We disagree, and affirm the district court.
On July 13, 2000, Banjo was convicted by a Los Angeles County jury of one count of kidnapping with the intent to commit rape and/or sodomy and one count of sodomy. He was sentenced to prison for twenty-five years to life on January 8, 2001. He appealed to the California Court of Appeal and California Supreme Court without success.
Banjo then began his state habeas proceedings. On December 30, 2003, he filed his first petition in the Los Angeles County Superior Court, requesting relief on three grounds. The superior court issued an order to show cause on one claim, denying relief on the others. The court ultimately held an evidentiary hearing on Banjo's claim, but denied the petition on January 28, 2005, after finding Banjo's key witness not credible. On February 10, 2005, Banjo's motion to reconsider was likewise denied.
Almost five months later, on July 6, 2005, Banjo filed a second petition for a writ of habeas corpus in the Los Angeles County Superior Court. In this petition, Banjo brought the same three claims he had alleged in the first petition, but appended declarations from five new witnesses. The declarations were offered to corroborate the evidence and independently establish the factual allegations that Banjo had raised at the first hearing.
The court denied Banjo's second petition on July 27, 2005, in part because Banjo failed to exercise due diligence in locating the new witnesses. The court observed that the petition "relie[d] upon declaration[s] by people who live in the Southern California area and have been available for investigation, interview and testimony at all relevant times. These are matters that could have been and should have been presented during the extensive proceedings on the first habeas petition."
Banjo next filed a habeas petition in the California Court of Appeal on September 29, 2005. On April 11, 2006, the court denied that petition without comment. Banjo then filed his last state habeas petition on May 18, 2006, before the California Supreme Court. That petition was summarily denied on March 21, 2007.
Banjo then moved to federal court. He filed a petition for a writ of habeas corpus in the Central District of California on April 2, 2007. California's motion to dismiss the federal petition as ...