                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 20 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JAMES PATRICK GRIFFIN, Jr.,                      No. 11-15387

              Petitioner - Appellant,            D.C. No. 2:10-cv-00354-GEB-
                                                 KJN
  v.

RANDY GROUNDS, Warden,                           MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                            Submitted March 15, 2012 **
                             San Francisco, California

Before: McKEOWN and M. SMITH, Circuit Judges, and ROTHSTEIN, Senior
District Judge.***




        *
             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).
        ***
             The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
District of Western Washington, sitting by designation.
      James Patrick Griffin appeals the district court’s dismissal of his federal

petition for writ of habeas corpus as untimely. Because the parties are familiar

with the factual and procedural history of this case, we repeat only those facts

necessary to resolve the issues raised on appeal. We have jurisdiction pursuant to

28 U.S.C. §§ 1291 and 2253, and we affirm.

      On February 10, 1982, Griffin entered a guilty plea, against the advice of his

attorney, to first degree murder. Griffin was sentenced to an indeterminate term of

twenty-five years to life. He did not file an appeal; therefore, his conviction

became final sixty days later on April 11, 1982.

      In 1993, Herb Sokol, a volunteer lay chaplain and pastor, hired attorney

Charles Bonneau to research whether Griffin could file a petition for habeas corpus

based on the claim that Griffin was not competent at the time he entered his plea.

In August 1993, Griffin received a letter from Bonneau, advising that Griffin had a

claim for habeas relief but that it would cost Griffin $4,000 for the petition and

$2,000 to hire a psychiatrist. Griffin indicated, in a March 2008 declaration, that

“[n]o petition was filed at that time because [he] did not have sufficient funds to

hire the attorney.”

      Approximately twenty-five years after his judgment became final (and

approximately fourteen years after receiving the letter from Bonneau), on August


                                           2
17, 2007, Griffin filed his first state habeas petition attacking his conviction. The

petition was based on an examination by Dr. Howard Terrell, a forensic science

psychiatrist, who found Griffin to be mentally incompetent at the time he entered

his plea and at the time of sentencing. While Dr. Terrell also noted subsequent

issues relating to Griffin’s mental health, his opinion did not assert that Griffin was

mentally incompetent from 1982 until the time he filed his federal habeas petition.

The California Court of Appeals denied relief on August 27, 2007.

      Griffin then filed a habeas petition on September 13, 2007, in Solano County

Superior Court, which denied the petition as untimely and on the merits on

November 29, 2007. On April 7, 2008, Griffin filed another habeas petition in the

California Court of Appeal, which denied relief. The California Supreme Court

denied relief on October 22, 2009. Griffin filed his first federal habeas petition on

February 10, 2010. The petition at issue on appeal is Griffin’s second amended

habeas petition filed on May 10, 2010.

      The district court found that the factual predicate for Griffin’s claim was

known to Griffin at least as of 1993 when he received the letter from Bonneau and

therefore held that Griffin’s federal habeas petition was untimely. Although

pendency of a “properly filed application for State post-conviction or other

collateral review,” 28 U.S.C. § 2244(d)(2), tolls the Antiterrorism and Effective


                                           3
Death Penalty Act’s one-year statute of limitation, Griffin did not make a state

filing until August 17, 2007. Consequently, his federal habeas petition filed in

May 2010 was untimely. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.

2003) (holding that § 2244(d) does not permit the reinitiation of a federal

limitations period that has ended before the state petition was filed).

      Griffin’s argument that he could not have discovered the factual predicate

for his claim before the issuance of Dr. Terrell’s report on December 4, 2006, is

belied by Griffin’s receipt of Bonneau’s 1993 letter. In addition, the competence

issue was raised at least three times during the 1982 plea proceedings. However,

even giving Griffin the benefit of the doubt and commencing the one-year statute

of limitations on December 4, 2006, his May 2010 federal filing would still be

untimely. His August 2007 state filing would have tolled the statute for 10 days,

extending his limitations period to December 14, 2007. The September 2007 state

petition would not have further tolled the limitations period because that petition

was deemed untimely. See Pace v. DiGuglielmo, 544 U.S. 408, 413-17 (2005)

(holding that when a post-conviction petition is untimely under state law, it is not

“properly filed” for the purposes of § 2244(d)(2) tolling). Griffin did not file

another state petition until April 7, 2008, at which time the limitations period for

filing his federal habeas petition had already expired. Even under Griffin’s


                                           4
calculation, Griffin’s federal petition is untimely and not entitled to statutory

tolling.

       Finally, Griffin is not entitled to equitable tolling since he does not

demonstrate how any mental illness prevented him from filing a federal habeas

petition from the time his conviction became final until he ultimately filed a

petition in May 2010. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)

(“The prisoner must show that the ‘extraordinary circumstances’ were the cause of

his untimeliness.” (citation omitted)). The district court’s dismissal is further

supported by Griffin’s 2008 declaration, which indicated that he did not seek relief

because of lack of funding, rather than due to mental incompetence.

       AFFIRMED.




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