Patel v. United States

55 F. App'x 479

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 30, 2003
• Docket: No. 02-15642: D.C. No. CV-98-01723-WBS
• Status: Published

Opinion

MEMORANDUM

*

Dr. Jijibhoy Patel and his wife Silloo appeal the dismissal of their 28 U.S.C. § 2255 petition as untimely under the An-titerrorism and Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitations. We affirm.

The Patels argue that this petition should relate back to their previously dismissed petition in 1993. The district court dismissed the earlier petition without prejudice because its claims overlapped those in a pending direct appeal of the Patels’ tax evasion conviction. Because the earlier petition was properly dismissed, there was no pending petition to which the Pa-tels’ new petition could relate back or which they could amend. See Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999).

The Patels filed their second habeas petition outside of AEDPA’s one-year limitation period for prisoners to file habeas petitions in federal court. As to Dr. Patel, the district court properly dismissed the petition as time-barred. See Green v. White, 223 F.3d 1001, 1003 (9th Cir.2000). Silloo Patel was not in custody when the 1998 petition was filed. Because it does not relate back to the earlier petition, the district court lacked jurisdiction over her petition. See Henry, 164 F.3d at 1241.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.