                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                                 FEB 17 2010

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

MICHAEL PAUL RAMOS,                              No. 09-55031

             Petitioner - Appellant,             D.C. No. 3:05-cv-01712-MMA-
                                                 JMA
  v.

JAMES A. YATES,                                  MEMORANDUM *

             Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Michael M. Anello, District Judge, Presiding

                           Submitted February 1, 2010**
                              Pasadena, California

Before: KLEINFELD, WARDLAW and CALLAHAN, Circuit Judges.



       Ramos appeals the district court's order denying his 28 U.S.C. § 2254 habeas

corpus petition. The district court dismissed the petition as untimely because


        *
             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).
Ramos did not file it within the one-year statute of limitations provided by the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). We affirm on

alternative independent grounds, either of which would require the result.



      Ramos failed to explain to both the Superior Court of the State of California

and the California Court of Appeal why he waited almost four years before filing

his first state habeas petition. In dismissing Ramos's petitions, both courts

addressed the untimeliness of his filings. The language that the California superior

and appellate courts used to deny Ramos’s petitions is materially similar to the

language considered in Bonner v. Carey, 425 F.3d 1145, 1147 (9th Cir. 2005). We

held in Bonner that a state court's use of this language amounts to a denial for

untimeliness. Id. at 1148. Thus, under Pace v. DiGuglielmo, 544 U.S. 408, 414

(2005), Ramos’s state habeas petitions were not “properly filed” for purposes of

statutory tolling. Bonner, 425 F.3d at 1148. Without statutory tolling of the time

his state habeas petitions were pending, his federal petition—filed several years

after his state court conviction became final—is untimely under AEDPA’s one-

year limitation period.




                                          2
      Even if Ramos had explained the ineffective assistance of his previous

attorney to the California superior and appellate courts as reason for his delay, and

those courts had equitably tolled the period when he was represented by deficient

counsel, Ramos’s state petitions still would have been untimely. Ramos’s state

court conviction became final on January 16, 2001. He filed his first state habeas

petition 1,122 days later on February 12, 2004. After subtracting the time from

when he retained his ineffective counsel to when his present counsel obtained a

copy of his trial record (from June 21, 2001 to November 19, 2003—881 days),

Ramos is still left with approximately 240 non-tolled days between his conviction

becoming final and the filing of his first state habeas petition.



      Ramos offered no justification for this 240-day delay, which is substantially

longer than the 90-day period in which the courts presume timeliness under

California law. See In re Robbins, 959 P.2d 311, 317 (Cal. 1998) (“[A] habeas

corpus petition is not entitled to a presumption of timeliness if it is filed more than

90 days after the final due date for the filing of appellant's reply brief on the direct

appeal.”). Without the required justification for his delay, Ramos’s state petitions

were not “properly filed,” making the time they were pending before the California

courts ineligible for statutory tolling. See Chaffer v. Prosper, No. 07-16853, slip


                                            3
op. at 1, 2010 WL 157488 (9th Cir. Jan. 19, 2010) (per curiam) (holding that an

unexplained gap of 101 days between filing of state habeas petitions made petition

untimely under California law and not subject to statutory tolling). Without

statutory tolling of the time his state habeas petitions were pending, Ramos’s delay

in filing his federal petition exceeds AEDPA’s one-year limitation period. Thus,

the district court was correct to dismiss it as untimely.1



      AFFIRMED.




      1
        Because AEDPA’s one-year statute of limitations expired before Ramos’s
habeas petition was considered by the California Supreme Court, we need not
decide whether that court found Ramos’s petition timely.

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