                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 16 2012

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




                            FOR THE NINTH CIRCUIT



JOHN P. BAKER,                                   No. 10-16716

              Petitioner - Appellant,            D.C. No. 4:09-cv-00315-FRZ

  v.
                                                 MEMORANDUM *
CHARLES L. RYAN; ATTORNEY
GENERAL OF THE STATE OF
ARIZONA,

              Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                  Frank R. Zapata, Senior District Judge, Presiding

                           Submitted November 5, 2012 **
                             San Francisco, California

Before: FARRIS, NOONAN, and BYBEE, Circuit Judges.

       John P. Baker appeals the district court’s denial of his federal habeas corpus

petition as untimely. He argues that he was entitled to statutory or equitable tolling


        *
             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).
of the Antiterrorism and Effective Death Penalty Act (AEDPA). We review this

matter de novo. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). We affirm.

      The parties are familiar with the facts. Baker was convicted by a jury for

conspiracy, kidnaping, and child abuse. His conviction was denied review by the

Arizona Supreme Court in 2001. A petition for post-conviction relief resulted in

his resentencing on May 2, 2005. Baker filed several other petitions for post-

conviction relief. Two were timely filed, consolidated, and denied by the Arizona

Court of Appeals. The Arizona Supreme Court denied review of those two

petitions on August 8, 2007. Baker filed a third petition for post-conviction review

on October 3, 2006. The trial and appellate courts denied relief, and the Arizona

Supreme Court denied review on December 17, 2007. Baker filed his fourth

petition on September 11, 2007. The trial and appellate courts denied relief, and

the Arizona Supreme Court denied review on March 10, 2009. He filed his federal

habeas petition on June 3, 2009.

      The AEDPA one-year statutory limitation runs from the latest of four events,

including “the date on which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review.” 28 U.S.C. §

2244(d)(1)(A). It is tolled for the “time during which a properly filed application




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for State post-conviction or other collateral review” is pending. 28 U.S.C. §

2244(d)(2).

      In Baker’s case, AEDPA is tolled by the consolidated first and second

petitions for post conviction relief, which were timely filed. The conclusion of

direct review for those petitions was August 8, 2007. Unless he could avail

himself of other tolling, the deadline for Baker to file his federal habeas petition

was one year later, on August 8, 2008.

      Whether the third petition was timely is irrelevant, as it would toll AEDPA

until December, 2008, resulting in an time-barred federal habeas petition. The

timeliness of the federal habeas petition rests on the fourth petition for post-

conviction relief, which, if timely, would toll AEDPA until March 10, 2010.

      Baker argues that his fourth petition meets a timeliness exception under

Az.R.Crim.P. 32.1(g), allowing a petition if there is a “significant change in the

law that if determined to apply to defendant’s case would probably overturn the

defendant’s conviction or sentence.” Baker’s petition alleged a significant change

in sentencing law. The state courts disagreed. Upholding the lower court, the

Arizona Court of Appeals added that Baker’s claim was unduly vague and that the

alleged change did not apply to Baker. Because Baker’s fourth petition did not

qualify for the Rule 32.1(g) exception to the conditions to filing in Rule 32.4(a),


                                           3
we conclude that it was untimely under Arizona law. Untimely petitions are not

“properly filed”, so the fourth petition does not toll AEDPA.

      Baker further argues that two new Supreme Court cases, Lafler v. Cooper,

132 S. Ct. 1376 (2012) and Missouri v. Frye, 132 S. Ct. 1399 (2012), announce

newly-recognized constitutional rights that apply retroactively to Baker’s case and

therefore toll AEDPA. 28 U.S.C. § 2244(d)(1)(C). But Lafler and Frye do not

recognize new constitutional rights. Buenrostro v. United States, No. 12-71253, 12

Cal. Daily Op. Serv. 11, 430 (9th Cir. Oct. 9, 2012).

      Finally, Baker argues that he is entitled to equitable tolling. He does not

present judicially-recognized extraordinary circumstances or new evidence of

actual innocence that would entitle him to equitable tolling. Holland v. Florida,

130 S. Ct. 2549, 2562 (2010).

      AFFIRMED.




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