                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 13 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

TRAVIS MICHAEL EASTER,                          No.    16-35814

                Petitioner-Appellant,           D.C. No. 2:14-cv-00999-HZ

 v.
                                                MEMORANDUM*
JERI TAYLOR,

                Respondent-Appellee.

                  Appeal from the United States District Court
                           for the District of Oregon
                  Marco A. Hernandez, District Judge, Presiding

                            Submitted March 9, 2018**
                                Portland, Oregon

Before: N.R. SMITH, CHRISTEN, and HURWITZ, Circuit Judges.

      Travis Easter, an Oregon state prisoner, appeals the district court’s dismissal

of his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28

U.S.C. §§ 1291 and 2253, and affirm.

      1. The district court correctly held that the petition was untimely under the


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
one-year period of limitation in 28 U.S.C. § 2244(d). Easter’s Oregon conviction

became final in October 2006, and the § 2254 petition was not filed until June 2014.

Easter argues that the statute was not triggered until he learned in 2013 that one of

his prior convictions might not qualify as a predicate under Or. Rev. Stat. § 137.719

pursuant to Gordon v. Hall, 221 P.3d 763 (Or. Ct. App. 2009). But, 28 U.S.C. §

2244(d)(1)(D) tolls the one-year statute until a petitioner exercising due diligence

could have discovered the “factual predicate” of a claim, and “a state-court decision

establishing an abstract proposition of law arguably helpful to the petitioner’s claim

does not constitute the ‘factual predicate’ for that claim.” Shannon v. Newland, 410

F.3d 1083, 1089 (9th Cir. 2005). Moreover, Easter does not explain why he was

unable, in the exercise of due diligence, to learn of the Oregon decision until 2013.

      2. Easter also argues that he is entitled to equitable tolling because his trial

counsel failed to argue that the 1989 conviction was not a predicate under § 137.719,

and allowed him to accept a plea agreement that waived the right to attack the

conviction and sentence. But, counsel’s alleged failings did not “make it impossible

to file a petition on time,” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010)

(citation omitted), nor does it amount to attorney abandonment or egregious

professional misconduct, see Maples v. Thomas, 565 U.S. 266, 270–71 (2012); Luna




                                          2
v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015).1

      3. The district court did not err in finding that Easter’s claim of “actual

innocence” cannot excuse the untimely filing. See McQuiggin v. Perkins, 569 U.S.

383, 386–87 (2013). Easter does not assert that he is innocent of the underlying

criminal conduct to which he pleaded guilty, just that his sentence is improper under

state law.

      4. The district court did not err in holding that Easter had not established that

an ineffective state post-conviction relief process excused the delay in filing the

federal habeas petition. The period of limitation had already run before Easter filed

for relief in state court, and he waited two years after state proceedings concluded

before filing the federal petition. See 28 U.S.C. § 2244(d).

      AFFIRMED.




1
       Easter also argues that the state prosecutor “impeded” his ability to bring the
habeas petition by asserting that the 1989 conviction was a predicate under Or. Rev.
Stat. § 137.719, “erroneously or vindictively” bringing charges against him, and
demanding an appeal waiver as a condition of the plea. But, none of these alleged
actions made it impossible for Easter to file the habeas petition timely. See Bills,
628 F.3d at 1097.

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