                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 11 2014

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



                            FOR THE NINTH CIRCUIT


HON KEUNG TSE,                                   No. 10-56206

              Petitioner - Appellant,            D.C. No. 2:09-cv-08829-CJC-
                                                 MLG
  v.

SCOTT MCEWEN, Warden,                            MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                      Argued and Submitted February 3, 2014
                               Pasadena, California

Before: PREGERSON and BERZON, Circuit Judges, and AMON, Chief District
Judge.**

       Hon Keung Tse appeals from a judgment dismissing his federal habeas

corpus petition as untimely. We agree with the district court that the petition was

not timely under 28 U.S.C. § 2244(d), and so affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Carol Bagley Amon, Chief District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
      Tse argues that AEDPA’s one-year statute of limitations did not begin to run

until March 21, 2008, when he received a complete copy of his trial transcript from

his former attorney and realized that his trial counsel did not discuss a six-year

potential plea offer with him. Relying on 28 U.S.C. § 2244(d)(1)(D), Tse asserts

that because he did not learn of the factual predicate of his ineffective assistance of

counsel claim until he received the trial transcript and had a fellow prisoner review

it, the statute of limitations did not begin to run until this time. However, the trial

transcripts existed and were in the possession of Tse’s appellate and habeas

attorneys since at least early 2006. While represented, Tse was bound by what his

attorneys knew or could have known. See Maples v. Thomas, 132 S. Ct. 912, 922

(2012). Tse has not alleged that either his appellate or habeas counsel abandoned

him, see id. at 922–23, or even that counsel was ineffective for failing to identify

the non-communication-of-plea-offer issue, see Martinez v. Ryan, 132 S. Ct. 1309,

1320 (2012). Tse’s claim that he could not “through the exercise of due diligence”

have discovered the conversation transcribed in these transcripts until March 2008,

when the transcripts had been in the possession of his own agents for several years,

therefore fails. See 28 U.S.C. § 2244(d)(1)(D).

      Tse further argues that the district court erred by: (1) not applying statutory

tolling to the time period between when the Superior Court denied his first state


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habeas petition and the filing of the first state habeas petition in the California

Supreme Court; and (2) not applying equitable tolling to the period during which

the filing of Tse’s first state habeas petition was hampered by an unforeseen

accident involving a key member of his legal team. Tse recognizes that even if we

apply statutory tolling to the interval between the Superior Court’s denial of his

first state habeas petition and the filing of his first state habeas petition in the

California Supreme Court, his federal petition is untimely absent equitable tolling.

       We agree with the district court that Tse is not entitled to equitable tolling.

Tse failed to demonstrate that an “extraordinary circumstance stood in his way and

prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal

quotation marks omitted). The extraordinary circumstance Tse relies on occurred

in 2006, before Tse filed his first state post-conviction petition. Its effect on Tse’s

ability to file a timely federal petition years later is far too attenuated to warrant

equitable relief. After the state Supreme Court rejected his second post-conviction

petition on March 18, 2009, Tse waited until November 25, 2009, to file his federal

petition. During that time, he elected to bring a third round of state habeas

petitions, pro se, rather than proceed to federal court. Tse does not argue that the

third round of state petitions is itself a basis for equitable tolling, and, because the

petitions were not properly filed in state court, there is no statutory tolling for that


                                             3
period either. See Walker v. Martin, 131 S. Ct. 1120, 1125 (2011). In such

circumstances, we cannot say that an incident occurring three years before Tse

filed his federal petition was a “proximate cause[]” of the late filing. Roy v.

Lampert, 465 F.3d 964, 973 (9th Cir. 2006) (quoting Stillman v. LaMarque, 319

F.3d 1199, 1203 (9th Cir. 2003)).

      For the foregoing reasons, we AFFIRM.




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