                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 13 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

SAMUEL SALDANA,                                  No. 12-16605

              Petitioner - Appellant,            D.C. No. 2:11-cv-02149-JAM-
                                                 DAD
  v.

G. D. LEWIS, Warden,                             MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                    John A. Mendez, District Judge, Presiding

                           Submitted March 10, 2015**
                             San Francisco California

Before: McKEOWN, MURGUIA, and FRIEDLAND, Circuit Judges.

       Petitioner/Appellant Samuel Saldaña was convicted of carjacking by a jury

in California’s Sacramento County. Saldaña filed a timely petition for writ of

habeas corpus in the Eastern District of California. Saldaña then dismissed his


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
petition in the Eastern District voluntarily, litigated his claims to completion in

state court, and returned to the district court with a new petition well after the one-

year statute of limitations had elapsed. See 28 U.S.C. § 2244(d)(1)(A). Saldaña

now argues that he is entitled to equitable tolling.

      By dismissing his first federal petition “without prejudice,” Saldaña argues,

the district court misled Saldaña to believe that he would be free to file a second

petition after exhausting his claims in state court without regard for the statute of

limitations. However, Saldaña cannot have relied on the district court’s order

because he voluntarily dismissed his first petition before the order issued. A

voluntary dismissal terminates the action immediately, leaving nothing more for

the district court to do. See Fed. R. Civ. P. 41(a)(1)(A)(i); Commercial Space

Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1077 (9th Cir. 1999). Further, Saldaña’s

second petition would have been untimely no matter what the district court might

have said because the one-year statute of limitations had run by the time Saldaña

dismissed the first petition. See Duncan v. Walker, 533 U.S. 167, 181–82 (2001)

(a pending federal habeas petition does not toll the statute of limitations). Finally,

a district court’s statement that dismissal is “without prejudice” accurately

describes the consequences of dismissal and is not misleading. See Ford v. Pliler,

590 F.3d 782, 788–89 (9th Cir. 2009).


                                           2
      Saldaña also contends he is entitled to an evidentiary hearing on his

argument that the passing of the limitations period should be excused because he is

actually innocent. The district court did not abuse its discretion in denying a

hearing because Saldaña has not alleged the existence of evidence demonstrating

that, “but for constitutional error, no reasonable factfinder would have found

[Saldaña] guilty.” See 28 U.S.C. § 2254(e)(2)(B). A witness’s contradictory

testimony in an earlier trial does not “fundamentally call into question the

reliability of [Saldaña’s] conviction” in light of the other evidence against Saldaña.

See Sistrunk v. Armenakis, 292 F.3d 669, 676–77 (9th Cir. 2002). An evidentiary

hearing is not warranted for the additional reason that the witness’s contradictory

testimony “could . . . have been previously discovered through the exercise of due

diligence.” See 28 U.S.C. § 2254(e)(2)(A)(ii). Not only was the contradiction

apparent on the records of the two trials, but Saldaña’s counsel confronted the

witness with the inconsistency during the Sacramento County trial.

      AFFIRMED.




                                          3
