John Perez v. Greg Lewis, Warden

543 F. App'x 710

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 25, 2013
• Docket: 09-56441
• Status: Unpublished

Opinion

MEMORANDUM **

Petitioner John Timothy Perez appeals the district court’s denial of his petition for habeas corpus, brought pursuant to 28 U.S.C. § 2254. Perez raises two arguments that his petition should not have been dismissed as untimely and we address each in turn.

Perez is not entitled to an equitable exception to AEDPA’s statute of limitations, 28 U.S.C. § 2244(d)(1)(D), on the basis of “actual innocence,” McQuiggin v. Perkins, — U.S. -, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013); see also Lee v. Lampert, 653 F.3d 929, 932 (9th Cir.2011). He has not “demonstrate[d] that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt.” Lee, 653 F.3d at 937.

We will assume, arguendo, that Perez is entitled to delayed accrual of his claim and that he exercised diligence. He concedes, however, that he is not entitled to statutory tolling while his petition was pending in the California Supreme Court, because that court dismissed his petition as untimely. See Pace v. DiGuglielmo, 544 U.S. 408, 410, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Perez is, therefore, not entitled to equitable tolling sufficient to make his ha-beas petition timely. See Lakey v. Hickman, 633 F.3d 782, 787 (9th Cir.2011).

AFFIRMED

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