Robert Gonzales v. Kelly Santoro

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 27, 2018
• Docket: 16-55846
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 27 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT JOE GONZALES, No. 16-55846

Petitioner-Appellant, D.C. No. 2:15-cv-01941-MRW

v. MEMORANDUM* and ORDER KELLY SANTORO, Acting Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Michael R. Wilner, Magistrate Judge, Presiding

Argued and Submitted August 9, 2018 Pasadena, California

Before: TASHIMA and CHRISTEN, Circuit Judges, and RUFE,** District Judge.

Petitioner Robert Joe Gonzales appeals a district court order dismissing as

untimely his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Cynthia M. Rufe, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we review de novo. Curiel v.

Miller, 830 F.3d 864, 868 (9th Cir. 2016) (en banc). We affirm.

1. Gonzales’s request for judicial notice, Dkt. No. 19, is GRANTED.

See Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (citing Fed. R. Evid.

201(f)).

2. Gonzales is not entitled to statutory tolling under 28 U.S.C.

§ 2244(d)(2) because the California Court of Appeal deemed his petition untimely

under state law by citing In re Clark, 5 Cal. 4th 750, 765 (1993), as an alternative

to its ruling on the merits. See Curiel, 830 F.3d at 868–69. Although, as Gonzales

argues, the pincited page of Clark describes three procedural rules including the

timeliness rule, Clark is understood primarily to represent California’s timeliness

rule. See id.; Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011). To the extent

Clark signifies a different California rule, that rule is the one against second or

successive petitions, see Curiel, 830 F.3d at 877 n.3 (Bybee, J., concurring), which

Gonzales concedes is not relevant here. The citation to Clark establishes that the

California Court of Appeal deemed Gonzales’s petition untimely, and this court

must defer to that determination.

3. Gonzales is not entitled to equitable tolling. The self-styled tolling

notice that Gonzales filed in a different case—the dismissal of which Gonzales did

2 not appeal—was not a protective petition under Pace v. DiGuglielmo, 544 U.S.

408, 416 (2005), and the district court in that case was not obligated to treat it as

one. Consequently, Gonzales’s reliance on Jefferson v. Budge, 419 F.3d 1013 (9th

Cir. 2005), and Smith v. Ratelle, 323 F.3d 813 (9th Cir.2003), to obtain equitable

tolling in this case is unavailing.

4. Gonzales does not identify a date from which the statute of limitations

should be calculated if analyzed under 28 U.S.C. § 2244(d)(1)(D). We decline

Gonzales’s invitation to remand for further factual development. Assuming the

date on which Gonzales received his trial transcripts qualifies for treatment under

§ 2244(d)(1)(D), the question of when he obtained those transcripts is not “highly

fact-dependent.” Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en

banc) (per curiam). Gonzales was capable of submitting dispositive evidence of

the date in the form of a declaration, but he did not. Under the circumstances, we

conclude that a remand is unwarranted.

AFFIRMED.