Argued and Submitted, San Francisco, California April 13, 2015.
Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:12-cv-01634-KJM-DAD. Kimberly J. Mueller, District Judge, Presiding.
The panel affirmed the dismissal as untimely of a habeas corpus petition brought under 28 U.S.C. § 2254.
The time during which the petitioner's state-court habeas petition was pending was not counted against the one year that he had to file his federal petition. The panel held that the petitioner was not entitled to additional tolling for the time during which he could have, but did not, file a further petition for habeas relief in California state court.
Faye Arfa (argued), Los Angeles, California, for Petitioner-Appellant.
Kamala D. Harris, Attorney General; Michael P. Farrell, Senior Assistant Attorney General; Brian G. Smiley and Michael A. Canzoneri, Supervising Deputy Attorneys General; Justin Riley (argued), Deputy Attorney General, Sacramento, California; for Respondent-Appellee.
Before: Alex Kozinski and Susan P. Graber, Circuit Judges, and Michael A. Ponsor,[*] Senior District Judge. Opinion by Judge Ponsor.
Michael A. Ponsor, District Judge:
After his state court conviction became final on April 12, 2011, Petitioner Christopher Maes had one year to file any federal habeas corpus petition. 28 U.S.C. § 2244(d). Two days shy of one year, Maes filed a petition for habeas corpus in the state superior court. The period during which this " properly filed" state petition was " pending" was not counted against the year that Maes had to file his federal petition. Id. § 2244(d)(2). This uncounted period ended on May 7, 2012, when the Superior Court of Shasta County, California, denied his state habeas petition, leaving Maes two days to file for federal habeas relief. Because Maes waited until May 15, 2012, to file a federal petition, the district court dismissed it as untimely. Maes now appeals, arguing that he had at least sixty days after the denial of his state habeas petition to file for federal habeas relief. We disagree and affirm the district court's decision to dismiss.
The procedural background of this case may be succinctly summarized. On April 8, 2009, Christopher Maes was convicted by a jury in Shasta County, California, of failing to provide notice of a change of address as a registered sex offender. As a three-time serious felon, Maes was sentenced to twenty-five years to life in state prison. Cal. Penal Code § 1170.12(c)(2)(A).
Maes unsuccessfully sought direct appellate review. On October 21, 2010, the California Court of Appeal affirmed his conviction. The California Supreme Court denied his next appeal on January 12, 2011. Maes had ninety days to seek further direct review via a writ of certiorari to the U.S. Supreme Court. Maes did not take this step, and it is now undisputed that, for statute of limitations ...