                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 20 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DAVID E. EDWARDS,                                No.   15-17442

              Petitioner-Appellant,              D.C. No.
                                                 2:13-cv-01651-WBS-EFB
 v.

GARY SWARTHOUT, Warden,                          MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding

                          Submitted December 15, 2016**
                             San Francisco, California

Before: KOZINSKI, BYBEE, and N.R. SMITH, Circuit Judges.

      David Edwards appeals the judgment of the district court denying his 28

U.S.C. § 2254 petition for a writ of habeas corpus. We affirm.




      *
             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).
      1.     Edwards failed to properly exhaust his federal due process claim

pursuant to 28 U.S.C. § 2254(b)(1)(A), because he did not give the California state

courts “a ‘fair opportunity’ to act on his federal due process claim before

presenting it to the federal courts.” Castillo v. McFadden, 399 F.3d 993, 998 (9th

Cir. 2004) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)).

Edwards did not apprise the state court that he was making a claim under the

United States Constitution. Id. at 998-99. He neither described the “federal [due

process] theory on which his claim [was] based,” nor characterized his claim

specifically as a federal claim. Id. at 999.

      2.     Even if Edwards had exhausted his claim, the district court properly

dismissed his habeas petition as untimely. Under the applicable limitations period,

Edwards had one year to file his state habeas claim beginning on “the date on

which the factual predicate of [his] claim . . . could have been discovered through

the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D); see Mardesich v. Cate,

668 F.3d 1164, 1172 (9th Cir. 2012) (concluding that the applicable trigger date

under § 2244(d)(1) for cases involving an administrative decision is derived from

subsection (D)).

      The factual predicate of Edwards’s claim was the administrative decision,

which he admits he discovered on February 20, 2005. Because Edwards did not file


                                               2
for administrative review of that decision until December 9, 2011, nor did he file

for state habeas review until April 25, 2012, his petition was untimely.

      AFFIRMED.




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