Hung Vu v. Richard Kirkland

460 F. App'x 713

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 6, 2011
• Docket: 10-16686
• Status: Unpublished

Opinion

MEMORANDUM **

The district court did not abuse its discretion in declining to accept Appellant’s untimely habeas petition nunc pro tunc to a timely date. See Marx v. Loral Corp., 87 F.3d 1049, 1054 (9th Cir.1996) (applying abuse of discretion standard to nunc pro tunc order). The district court weighed all relevant factors — including the fault attributable to Appellant and Appellant’s attorney in filing the petition beyond the one-year statute of limitations — and concluded that the totality of factors weigh against accepting the petition nunc pro tunc. See Martinez v. Court of Appeal, 528 U.S. 152, 162, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (“[T]he trial judge is under no duty to provide personal instruction on courtroom procedure or to perform any legal ‘chores’ for the defendant that counsel would normally carry out.”); cf. Anthony v. Cambra, 236 F.3d 568, 574 n. 1 (9th Cir.2000) (finding district court acted within its discretion when it corrected its own error by accepting untimely habeas petition nunc pro tunc). Further, the district court did not err in concluding that dismissal of the petition would not work a harsh result because the claims in the untimely petition lacked probable merit. See Martin v. Henley, 452 F.2d 295, 299 (9th Cir.1971) (“The power to amend nunc pro tunc is a limited one, and may be used only where necessary to correct a clear mistake and prevent injustice.”).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.