Opinion
21-15410
10-25-2022
DARREN ROY MACK, Petitioner-Appellant, v. TIM GARRETT, Warden; et al., Respondents-Appellees.
NOT FOR PUBLICATION
Submitted October 21, 2022 [**] San Francisco, California
Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding D.C. No. 3:18-cv-00324-RCJ-CLB
Before: S.R. THOMAS and M. SMITH, Circuit Judges, and McSHANE, [***] District Judge.
MEMORANDUM [*] Darren Roy Mack filed a federal habeas petition pursuant to 28 U.S.C. § 2254, seeking review of his Nevada convictions. The district court dismissed Mack's petition as untimely, and this court granted a certificate of appealability on "whether appellant's [petition] was timely filed." We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
While Mack arguably waived multiple arguments considered here, we assume, without deciding, that the arguments were properly presented.
The parties' familiarity with the facts is assumed, and the standards of review are well established. See, e.g., United States v. Buckles, 647 F.3d 883, 887 (9th Cir. 2011) ("We review the dismissal of a [habeas petition] on timeliness grounds de novo. When the facts are not disputed, we review a request for equitable tolling de novo." (citations omitted)).
1. Mack is not entitled to statutory tolling. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year statute of limitations that, as relevant here, runs from the time a petitioner's conviction "became final by the conclusion of direct review." 28 U.S.C. § 2244(d)(1)(A). For petitioners "who pursue direct review all the way to [the Supreme Court], the judgment becomes final . . . when [the] Court affirms a conviction on the merits or denies a petition for certiorari." Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). AEDPA's statute of limitations is subject to statutory tolling while a petitioner's state post-conviction proceedings are "pending." 28 U.S.C. § 2244(d)(2). Such proceedings can pause AEDPA's statute of limitations, but they do "not permit the reinitiation of the limitations period that has ended before the state petition was filed." Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
Mack's conviction became final when the Supreme Court denied his petition for certiorari on February 22, 2011. See Gonzalez, 565 U.S. at 150. Mack did not initiate state post-conviction proceedings until March 8, 2012. Those proceedings could not toll AEDPA's one-year statute of limitations because it had already lapsed before the proceedings began. See Ferguson, 321 F.3d at 823.
2. Mack's present habeas petition (filed in 2018) cannot relate back to his initial petition (filed in 2012) that was properly dismissed for a failure to exhaust state remedies. Rasberry v. Garcia, 448 F.3d 1150, 1155 (9th Cir. 2006) ("[W]e hold that a habeas petition filed after the district court dismisses a previous petition without prejudice for failure to exhaust state remedies cannot relate back to the original habeas petition."); see also Luna v. Kernan, 784 F.3d 640, 645 (9th Cir. 2015) ("Because [Luna's counsel] had voluntarily dismissed Luna's pro se petition, however, that case had long since been closed. As a result, there was no pending petition to which the 'amended' petition could relate back.").
In Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000), we approved a district court's "exercise[] [of] its equitable powers to accept . . . nunc pro tunc" a petitioner's untimely petition that was filed shortly after the court improperly dismissed his timely petition without giving leave to amend. While the scope of Anthony is somewhat unsettled, see Rasberry, 448 F.3d at 1155, we need not decide whether Anthony would apply here. As explained below, the dismissal was not an abuse of discretion. The court gave Mack ample time to cure his petition.
3. Mack is not entitled to equitable tolling. "To be entitled to equitable tolling, a habeas petitioner must demonstrate two things: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Williams v. Filson, 908 F.3d 546, 558 (9th Cir. 2018) (internal quotation marks omitted) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). "A district court's erroneous dismissal of a [prior] mixed habeas petition is sufficiently extraordinary to justify equitable tolling" regarding a subsequently filed petition. Jefferson v. Budge, 419 F.3d 1013, 1017 (9th Cir. 2005) (quoting Smith v. Ratelle, 323 F.3d 813, 819 (9th Cir. 2003)).
That, however, did not occur here. The district court denied without prejudice Mack's motion to hold his 2012 federal habeas petition in abeyance while he exhausted his state remedies as to one claim. The court did so because the attorney who filed the motion had a conflict of interest. The court invited Mack to renew the motion and, after Mack failed to do so, gave him twenty days to abandon his unexhausted claim-warning him that otherwise it would dismiss his petition, as required by Rose v. Lundy, 455 U.S. 509, 522 (1982). Mack never responded, and only then did the court dismiss. The district court's dismissal of Mack's 2012 petition was entirely proper and, therefore, not an "extraordinary circumstance" justifying equitable tolling regarding Mack's present habeas petition filed in 2018.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
[***] The Honorable Michael J. McShane, United States District Judge for the District of Oregon, sitting by designation.