                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 02 2013

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




                            FOR THE NINTH CIRCUIT



MANUEL FLORENCE SANCHEZ,                         No. 08-17706

              Petitioner - Appellant,            D.C. No. 2:06-cv-02898-GEB-GGH

  v.
                                                 MEMORANDUM *
JAMES A. YATES, Warden,

              Respondent - Appellee.



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

                      Argued and Submitted October 18, 2012
                            San Francisco, California

Before: D.W. NELSON, MURGUIA, and CHRISTEN, Circuit Judges.**

       Manuel Sanchez appeals from the district court’s dismissal of his federal

habeas claims on the ground that the Anti-Terrorism and Effective Death Penalty




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **   Judge Christen was drawn to replace Judge Betty Binns Fletcher.
Judge Christen read the briefs, reviewed the record, and listened to oral arguments
held October 18, 2012.
Act’s (“AEDPA”) statute of limitations bars his claim. We review de novo the

denial of a 28 U.S.C. § 2254 habeas petition as untimely. Gaston v. Palmer, 417

F.3d 1030, 1034 (9th Cir. 2005), modified on other grounds, 447 F.3d 1165. This

court has jurisdiction over the appeal by 28 U.S.C. § 1291.

      Sanchez failed to file his habeas claims within the time period set out by 28

U.S.C. § 2244(d) and did not exhibit the diligence required for a grant of equitable

tolling. Therefore, the district court’s dismissal is AFFIRMED.

                              I. FACTUAL HISTORY

      The parties to this case are aware of the facts that underlie both Sanchez’s

conviction and his habeas claims; we recite only the facts pertinent to this appeal.

      Sanchez had one year to file his habeas claims in district court beginning

April 26, 2005, the day his state conviction became final. Id. § 2244(d)(1)(A).

Roughly six months later, on October 28, 2005, Sanchez filed his first state habeas

petition, successfully tolling AEDPA’s one year limitations period for as long as

Sanchez pursued his properly filed state habeas claims. Id. § 2244(d)(2). On April

6, 2006, Sanchez’s second state habeas petition was denied by the California Court

of Appeal. The Supreme Court of California dismissed Sanchez’s third state

habeas petition as untimely, and thus not properly filed, by citing In re Robbins, 18

Cal. 4th 770, 780 (1998). See Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir.


                                          -2-
2007). On December 19, 2006, Sanchez filed his federal habeas claims in district

court. The district court dismissed Sanchez’s petition as untimely and he appealed

to this court.

       As the basis for his equitable tolling claim, Sanchez claims not to have

received a complete copy of his trial transcripts from his trial counsel until

February 10, 2006.

                            II. STATUTORY TOLLING

       The district court correctly ruled that § 2244(d) barred Sanchez’s federal

habeas claim because the one-year limitations period was not tolled during the

pendency of his third state habeas petition. Statutory tolling is only available for

properly filed state habeas claims. § 2244(d)(2). This Court has previously held

that a citation to page 780 of In re Robbins signifies a “clear ruling” that a petition

was untimely. Thorson, 479 F.3d at 645. Because Sanchez’s final state habeas

petition was adjudged untimely it was not properly filed and therefore did not

trigger statutory tolling under § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408,

417 (2005).

       Sanchez qualified for statutory tolling for the 161 days between the filing of

his first state petition on October 28, 2005, and the denial of his second claim on




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April 6, 2006.1 The extra time gained through statutory tolling extended the

deadline for Sanchez to file his federal habeas petition from April 27, 2006, to

October 5, 2006. Sanchez did not file his pro se habeas petition in federal district

court until December 19, 2006, more than two months late. Sanchez’s petition was

barred by § 2244(d) unless he is eligible for equitable tolling.

                            III. EQUITABLE TOLLING

      Sanchez claims that he is entitled to equitable tolling either because he did

not receive his complete trial transcripts until February 10, 2006, or because he

could not have expected the California Supreme Court to deny his state habeas

claims on timeliness grounds.

      Equitable tolling is only available where a petitioner diligently pursued his

rights but some extraordinary circumstance stood in his way. Holland v. Florida,

____ U.S. ____, 130 S. Ct. 2549, 2562 (2010) (citing Pace, 544 U.S. at 418). The

rights referred to are the petitioner’s federal rights, so Sanchez must demonstrate

he diligently pursued his federal claims. Id. at 2563.




      1
             The government argues that Sanchez’s state claims were never
properly filed because the California Supreme Court’s dismissal on timeliness
grounds could only refer to the six months Sanchez waited to file his first state
habeas petition. Because this argument would not change the outcome of
Sanchez’s appeal, we do not reach it.

                                          -4-
      Sanchez received the complete trial transcripts more than ten months before

he filed his federal habeas petition. During those ten months, Sanchez could have

filed a petition in district court to protect his federal habeas rights against an

occurrence such as this one. Rhines v. Weber, 544 U.S. 269, 277 (2005). Because

Sanchez did not file his federal habeas petition until ten months after the alleged

impediment to filing was removed, he failed to demonstrate the “reasonable

diligence” required for equitable tolling of § 2244(d)’s limitations period.

Holland, 130 S. Ct. at 2565. We do not reach the question whether Sanchez’s

initial lack of access to the transcripts was an extraordinary circumstance.

      Sanchez does not qualify for equitable tolling because he was surprised by

the California Supreme Court’s ruling on timeliness grounds. When a state post-

conviction petition is untimely under state law, “‘that [is] the end of the matter’ for

purposes of § 2244(d)(2).” Pace, 544 U.S. at 414 (quoting Carey v. Saffold, 536

U.S. 214, 226 (2002) (alteration in original)). A state petitioner bears the risk that

he may “try[] in good faith to exhaust state remedies . . . only to find out at the end

that he was never ‘properly filed.’” Id. at 416.

      AFFIRMED.




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