Venegas v. Marshall

137 F. App'x 72

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 24, 2005
• Docket: No. 04-55264; D.C. No. CV-03-02846-DDP
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Samuel Venegas appeals the district court’s order dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2258. We review de novo the dismissal of a § 2254 petition on timeliness grounds, see Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir.2004), and we affirm.

Appellant is challenging the denial of parole by the Board of Prison Terms (“Board”). Appellant’s one-year statute of limitations began “when the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” See 28 U.S.C. § 2244(d)(1)(D). We conclude that appellant’s claims are not specific to his most recent denial of parole, but instead are broad challenges to the Board’s policy changes that have transpired over the last decade. Accordingly, we agree with the district court’s conclusion that the factual predicates for the claims presented were reasonably discoverable years ago through the exercise of due diligence, see Redd v. McGrath, 343 F.3d 1077, 1084 (9th Cir.2003), and his petition is untimely. See 28 U.S.C. § 2244(d)(1)(D).

Because appellant has not demonstrated that extraordinary circumstances beyond his control made it impossible to timely file his habeas petition, equitable tolling is not warranted. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999).

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.