Argued and Submitted, Pasadena, California: August
Appeal from the United States District Court for the Central District of California. D.C. No. 8:10-cv-00301-DDP-FMO. Dean D. Pregerson, District Judge, Presiding.
The panel affirmed the district court's order dismissing as untimely California state prisoner Freddy Curiel's habeas corpus petition brought pursuant to 28 U.S.C. § 2254.
The panel held that Curiel is not entitled to statutory tolling of AEDPA's one-year statute of limitations during the time in which his state post-conviction petition was pending. The panel explained that the California Supreme Court's citations to In re Swain and People v. Duvall, in its two-line denial of Curiel's petition, do not overcome the presumption that the California Supreme Court did not silently disregard the lower court's determination that the petition was untimely.
The panel rejected Curiel's contention that he is entitled to equitable tolling due to the actions of his former trial counsel. The panel explained that even if it is true that Curiel could not file his habeas petition until his trial counsel provided him with the trial files, Curiel had ample time to file a protective federal petition. The panel wrote that Curiel's pro se status does not change the result.
Jan B. Norman, Davis, California, argued the cause and filed the briefs for the petitioner.
Kevin Vienna, Supervising Deputy Attorney General for the State of California, San Diego, California, argued the cause for respondent. Angela M. Borzachillo, Deputy Attorney General for the State of California, San Diego California, filed the briefs for the petitioner.
Before: Diarmuid F. O'Scannlain, Johnnie B. Rawlinson, and Jay S. Bybee, Circuit Judges. Opinion by Judge O'Scannlain.
O'SCANNLAIN, Circuit Judge:
We must decide whether a California prisoner's state habeas petition was timely filed under the Antiterrorism and Effective Death Penalty Act.
In 2006, Freddy Curiel was convicted by a California Superior Court jury of first-degree murder and street terrorism. He was sentenced to life in prison without the possibility of parole, plus twenty-five years. Id.
Curiel appealed his conviction to the California Court of Appeal and, thereafter, to the California Supreme Court, which denied his petition for review on June 11, 2008. On May 12, 2009, Curiel filed a petition for a writ of habeas corpus with the Orange County Superior Court, which was denied on the " separate and independent grounds" that it was untimely and unmeritorious. Curiel filed a further petition with the California Court of Appeal on July 7, ...