                                                                             FILED
                           NOT FOR PUBLICATION                               OCT 17 2013

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



                           FOR THE NINTH CIRCUIT


LONNIE DAVID STRINGER,                           No. 11-16009

              Petitioner - Appellant,            D.C. No. 2:09-CV-02980-GEB-
                                                 EFB
  v.

ELVIN VALENZUELA, Warden,                        MEMORANDUM*

              Respondent - Appellee.


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

                      Argued and Submitted October 8, 2013
                            San Francisco, California

Before: D.W. NELSON, M. SMITH, and IKUTA, Circuit Judges.

       Lonnie David Stringer (“Stringer”) appeals the dismissal of his federal

habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C. §§ 1291

and 2253. We affirm in part, reverse in part, and remand.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court correctly concluded that Stringer was not entitled to

statutory tolling. The state court’s determination that his January 5, 2006 state

petition was timely did not toll the one year statute of limitations applicable to

Stringer’s federal habeas petition. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th

Cir. 2009).

      The district court also concluded correctly that the federal statute of

limitations began to run well before Stringer discovered additional facts in support

of a third party culpability defense in 2004 or 2005. Hasan v. Galaza, 254 F.3d

1150, 1154 n.3 (9th Cir. 2001). The record is clear that Stringer was aware of the

existence of a third party culpability defense at the time of his trial in 1996, and the

federal statute of limitations therefore started when his conviction became final.

28 U.S.C. § 2244(d)(1).

      Additionally, the district court concluded correctly that Stringer is not

entitled to equitable tolling. Stringer has failed to show reasonable diligence in

pursuing his rights. Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (citing

Holland v. Florida, 560 U.S. 631, 130 S. Ct. 2549, 2563 (2010)). His current

counsel took over the case in 2003 and was aware of and working on developing a

federal habeas claim no later than 2004. However, Stringer did not file a petition

until January 5, 2006.


                                           2
      The district court did not consider whether Stringer’s claim of actual

innocence would have excused the untimely filing of his federal habeas petition.

We remand for a determination of whether Stringer meets the actual innocence

exception to the federal one-year statute of limitations. McQuiggins v. Perkins,

— U.S. —, 133 S.Ct. 1924 (2013).

      AFFIRMED in part; REVERSED in part; REMANDED.




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