Jerry Pena v. Michael Martel

450 F. App'x 670

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 27, 2011
• Docket: 10-16133
• Status: Unpublished

Opinion

MEMORANDUM **

Jerry Pena appeals the judgment of the district court dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We assume that Pena’s third state habe-as petition was filed in the California Supreme Court on December 12, 2007, in accordance with the prison mailbox rule. That date is consistent with the proof of service, the legal mail log and the position taken by the state in the district court.

We nonetheless conclude that Pena is not entitled to statutory tolling for the interval between the California Court of Appeal’s denial of his second habeas petition and his filing of the third petition in the state supreme court. See 28 U.S.C. § 2244(d)(2). Pena’s filing delay was “substantially longer than the ‘30 to 60 days’ that ‘most States’ allow for filing petitions.” Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir.2010) (per curiam) (quoting Evans v. Chavis, 546 U.S. 189, 201, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006)); see also Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir.2011) (holding that an 81-day delay was “far longer than the Supreme Court’s thirty-to-sixty-day benchmark for California’s ‘reasonable time’ requirement”). Pena was therefore required to offer an adequate explanation for his delay, but he has not done so. See Velasquez, 639 F.3d at 968; Chaffer, 592 F.3d at 1048. Although Pena added a table of contents and a table of authorities to his petition, he does not explain why he could not have accomplished those quite minor modifications within a reasonable time. His federal petition was therefore untimely filed. See 28 U.S.C. § 2244(d)(1).

AFFIRMED.

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