Nguyen v. Garcia

77 F. App'x 928

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 22, 2003
• Docket: No. 02-55669; D.C. No. CV-01-01549-BTM
• Status: Published

Opinion

MEMORANDUM

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California state prisoner Tien T. Nguyen appeals pro se the district court’s denial as

Nguyen contends that he is entitled to statutory tolling for the time period between the denial of his first habeas petition in the California Supreme Court, and the filing of his second habeas petition to the California Supreme Court.

We conclude that Nguyen is not entitled to statutory tolling for the gap between the denial of his first petition to the California Supreme Court, and subsequent filing to the California Supreme Court because his second filing commenced a subsequent round of review, and was not a continuation of his first round. King v. Roe, 340 F.3d 821, 821-22 (9th Cir.2003) (per curiam) (finding that under a two-part test, petitioner was not entitled to tolling for the gap between his first and second series of petitions because his second series of petitions was not a continuation of his first full round of review); Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir.2003) (deciding that because petitioner’s first round of collateral review is complete when the state supreme court’s denial becomes final, a petitioner is not entitled to entitled to statutory tolling of the gap before he begins a second round of petitions); and Delhomme v. Ramirez, 340 F.3d 817, 820-21 (9th Cir.2003) (per curiam) (recognizing that “[a] round of collateral review may begin at any level, or even skip levels, ... but if there is any gap between the completion of one round of review and the commencement of another round of state habeas review, the petitioner is not entitled to tolling during the gap”). Without the benefit of statutory tolling for the time between his subsequent petitions to the California Supreme Court, Nguyen’s federal petition is untimely. Accordingly, we affirm the district court’s denial of Nguyen’s habeas petition as untimely.

AFFIRMED.¹

This disposition is not appropriate for publication and may not be cited to or by the untimely of his 28 U.S.C. § 2254 petition for writ of habeas corpus, challenging his conviction for attempted murder. We have jurisdiction pursuant to 28 U.S.C. § 2253. We affirm. courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . The Clerk shall file Appellee Silvia Garcia’s addenda to appellee’s brief received on Februaiy 25, 2003, and March 3, 2003.