                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 13 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JUAN ROMERO,                                    No.    17-35221

                Petitioner-Appellant,           D.C. No. 2:14-cv-00938-CL

 v.
                                                MEMORANDUM*
BRAD CAIN, Superintendent of Snake
River Correctional Institution,

                Respondent-Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael H. Simon, District Judge, Presiding

                             Submitted June 4, 2018**
                                Portland, Oregon

Before: M. SMITH and MURGUIA, Circuit Judges, and KORMAN,*** District
Judge.

      Petitioner-Appellant Juan Romero appeals the district court’s decision



      *
             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 Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
denying his petition for writ of habeas corpus. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

1.    The district court certified one issue for appeal: Whether Romero’s § 2254

habeas petition was untimely under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA). Romero filed his habeas petition on June 10, 2014. Under

AEDPA, the statute of limitations begins to run from the latest of one of four dates.

28 U.S.C. § 2244(d)(1). This case concerns two of those dates: (1) the date the

direct appeal becomes final and (2) the date on which the factual predicate of his

claim could have been discovered through due diligence. See id. § 2244(d)(1)(A),

(D). Because his conviction became final on March 17, 2002—the deadline to file

a cert petition—his habeas petition filed twelve years later is untimely under

§ 2244(d)(1)(A). See Gonzalez v. Thaler, 565 U.S. 134, 149 (2012); Sup. Ct. R.

13.

2.    Romero argues that the statute of limitations began in July 2011 when his

son found the juror affidavit that serves as the factual predicate for Romero’s

habeas petition. See 28 U.S.C. § 2244(d)(1)(D). This argument fails. The

affidavit was the basis for his motion for a new trial filed in 1999; Romero was in

the courtroom when the parties discussed this motion in July 1999; and counsel

discussed the contents of the affidavit during that hearing. See United States v.

Battles, 362 F.3d 1195, 1198 (9th Cir. 2004) (“[D]ue diligence requires that



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[petitioner] at least consult his own memory of the trial proceedings [when claims

are about happenings at the time of conviction]. His decision not to do so does not

bespeak due diligence.”). Petitioner’s trial counsel also indicated that he would

urge Romero to seek any available relief, including post-conviction relief. The

factual predicate of Romero’s petition was therefore available in July 1999, not

twelve years later.

      Nor has Romero presented “clear and convincing evidence” that he lacked

the mental capacity to comprehend the July 1999 proceeding. See Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003). Petitioner’s evidence concerned only his

mental health prior to his conviction and the motion for a new trial. He submitted

no evidence indicating that he lacked mental capacity at the time of his hearing or

between the date his conviction became final and the date his son found the

affidavit. He also submitted insufficient evidence establishing that the earliest he

could have learned of the affidavit through due diligence was in July 2011.

Counsel was aware of the affidavit, the affidavit was in Romero’s case file, and

Romero had a copy of the affidavit in his own records. See West v. Ryan, 652 F.3d

1071, 1078 (9th Cir. 2011) (concluding evidence could have been discovered by

due diligence where it was “undisputed that . . . counsel knew of at least some of

the allegations of [purportedly newly discovered evidence]”). Because Romero

fails to show that the state court clearly erred when it found he was aware of the



                                          3
factual predicate in July 1999, the statute of limitations began from the date

Romero’s conviction became final.

3.    Because the statute of limitations began in March 2002, not July 2011, his

June 2014 petition falls well outside the statute of limitations. We need not

consider (1) whether he is entitled to equitable tolling between 2012 and 2014

while his state collateral proceeding was pending or (2) whether the district court

should have held an evidentiary hearing on that issue.

      AFFIRMED.




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