                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 21 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JUAN GILBERTO MEDRANO,                           No.   17-56305

              Petitioner-Appellant,              D.C. No. 2:16-cv-08292-FFM

 v.
                                                 MEMORANDUM*
SCOTT FRAUENHEIM, Warden,

              Respondent-Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                 Frederick F. Mumm, Magistrate Judge, Presiding

                       Argued and Submitted April 12, 2019
                              Pasadena, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and GILSTRAP,**
District Judge.

      Juan Gilberto Medrano (Petitioner) appeals the denial of his federal habeas

petition filed in November, 2016.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable James Rodney Gilstrap, United States District Judge
for the Eastern District of Texas, sitting by designation.
      In November, 2015, Petitioner filed his first state habeas petition. While that

petition was pending, a few days later, Petitioner filed a protective federal petition

asserting the same claims as those in the state petition, and moved for a Rhines1

stay. In December, 2015, the federal district court summarily dismissed the

petition and denied the stay request because all claims were unexhausted.

Petitioner’s initial state petition was denied as untimely and on the merits in April,

2016. Petitioner’s subsequent state petitions were also unsuccessful.

      On November 7, 2016, Petitioner filed a second federal petition asserting the

now exhausted claims. He contended that he was entitled to equitable tolling

because, inter alia, he had limited access to the prison law library. The district

court denied the second federal petition as untimely, finding that Petitioner raised

no valid grounds for statutory tolling, and that Petitioner was not entitled to

equitable tolling because he failed to demonstrate that extraordinary circumstances

prevented him from timely filing his second habeas petition.

      This Court reviews “the timeliness of the federal habeas petition de novo.”

McMonagle v. Meyer, 802 F.3d 1093, 1096 (9th Cir. 2015) (en banc) (citation and

alterations omitted). Because Petitioner’s conviction became final on February 10,

2015, he had until February 10, 2016, to file a timely federal habeas petition. See


      1
          See Rhines v. Weber, 544 U.S. 269 (2005).
                                           2
id. at 1097. Therefore, the November, 2016, petition was not timely, absent

statutory2 or equitable tolling. See Espinoza-Matthews v. California, 432 F.3d

1021, 1025 (9th Cir. 2005). “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) (citation

and internal quotation marks omitted).

      On appeal, Petitioner argues that the district court erred in finding that

Petitioner’s limited access to a library was not an extraordinary circumstance that

warranted equitable tolling. However, normal restrictions on a prisoner’s access to

the law library does not constitute extraordinary circumstances standing in the way

of timely filing a federal petition. See Ramirez v. Yates, 571 F.3d 993, 998 (9th

Cir. 2009).




      2
        To the extent that Petitioner contends that he is entitled to statutory tolling,
the district court did not err in finding that Medrano was ineligible for statutory
tolling. Petitioner’s first state petition was denied as untimely, so it was not
properly before the state court to toll the limitations period. See Pace v.
DiGuglielmo, 544 U.S. 408, 417 (2005). The filings of his third and fourth state
petitions after the statute of limitations expired could not toll the running of a
limitations period that had already expired. See Ford v. Gonzalez, 683 F.3d 1230,
1237 n.4 (9th Cir. 2012).
                                            3
      Without having presented the argument to the district court,3 Petitioner now

asserts an additional basis for equitable tolling: that the denial of the Rhines stay

request in connection with his 2015 federal petition was erroneous under our

February, 2016, decision, Mena v. Long, 813 F.3d 907 (9th Cir. 2016) (explaining

that a Rhines stay is available for completely unexhausted petitions).

      Generally, we consider arguments not raised before the district court waived,

unless one of the following exceptions applies:

      (1) there are exceptional circumstances why the issue was not
      raised in the trial court; (2) the new issue arises while the appeal
      is pending because of a change in the law; or (3) the issue
      presented is purely one of law and the opposing party will suffer
      no prejudice as a result of the failure to raise the issue in the trial
      court. Further exception may be made when plain error has
      occurred and an injustice might otherwise result.

Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir. 2006) (citations and internal

quotation marks omitted).

      None of the exceptions provides a viable avenue for us to reach the Mena

issue. Petitioner describes no exceptional circumstances that prevented him from

raising the issue before either district court below. Even if Mena represented a

clear change in the law, Mena was not decided while this appeal was pending. The


      3
        Petitioner has not moved for reconsideration of the dismissal of his 2015
petition and the denial of the Rhines stay request under Federal Rule of Civil
Procedure 60(b)(6).
                                            4
determination of whether an extraordinary circumstance exists that warrants

equitable tolling is “highly fact-dependent,” Sossa v. Diaz, 729 F.3d 1225, 1229

(9th Cir. 2013), as is the inquiry into whether Petitioner sufficiently alleged good

cause to merit a stay. See King v. Ryan, 564 F.3d 1133, 1138 (9th Cir. 2009).

Although we have previously recognized that a district court’s erroneous dismissal

of a mixed petition is an extraordinary circumstance for tolling purposes, see

Jefferson v. Budge, 419 F.3d 1013, 1016-17 (9th Cir. 2005), we have never done so

for a completely unexhausted petition, where the equitable tolling issue was not

presented to the district court. In any event, Petitioner has not demonstrated that

the district court plainly erred when it denied the request in 2015, because the rule

articulated in Mena was not “clear or obvious.” United States v. Anguiano-Morfin,

713 F.3d 1208, 1211 (9th Cir. 2013).

      AFFIRMED.




                                           5
                                                                           FILED
Medrano v. Frauenheim, No. 17-56305                                         OCT 21 2019
                                                                        MOLLY C. DWYER, CLERK
MURGUIA, Circuit Judge, dissenting:                                      U.S. COURT OF APPEALS


      Because Medrano is entitled to equitable tolling, I would reverse.

      Adhering to Supreme Court guidance in Pace v. DiGuglielmo, 544 U.S. 408

(2005), Medrano diligently filed a protective federal habeas petition before

AEDPA’s one-year limitations period ran. That protective petition, however, was

improperly dismissed according to now-controlling Circuit precedent. In Mena v.

Long, 813 F.3d 907 (9th Cir. 2016)—which was published after the denial of

Medrano’s 2015 petition, but before the denial of his 2016 petition—our court

explained that a district court has discretion to grant a Rhines stay even if all claims

in a petition are unexhausted.

      The unwarranted dismissal of a petitioner’s earlier, timely filed federal

habeas petition is an extraordinary circumstance that can support equitable tolling.

Jefferson v. Budge, 419 F.3d 1013, 1017 (9th Cir. 2005). In light of Mena, we can

conclude that the logic of Jefferson extends to the present context. At least two

federal district courts in our Circuit agree. See Torres v. Sullivan, 2017 WL

2952925, *5 (C.D. Cal. May 25, 2017); Briggs v. California, 2017 WL 1806495,

*3–5 (N.D. Cal. May 5, 2017).
      Furthermore, because the question of whether dismissal of a protective

federal habeas petition pre-Mena can constitute an extraordinary circumstance

sufficient to warrant equitable tolling is “purely a question of law,” Allen v.

Ornoski, 435 F.3d 946, 960 (9th Cir. 2006), we could have and should have

addressed it for the first time on appeal.

      I respectfully dissent.
