                                                                              FILED
                            NOT FOR PUBLICATION                               JAN 28 2010

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




                            FOR THE NINTH CIRCUIT



EDWARD ONTIVEROS,                                No. 08-17317

              Petitioner - Appellant,            D.C. No. 2:07-cv-01441-JAM-
                                                 DAD
  v.

R. J. SUBIA,                                     MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                      Argued and Submitted January 15, 2010
                            San Francisco, California

Before: NOONAN, HAWKINS and M. SMITH, Circuit Judges.

       Edward Ontiveros, a California state prisoner, sought federal habeas relief to

challenge the parole board’s decision to deny him parole. The district court

dismissed the case, finding that the one-year deadline for filing under the

Antiterrorism and Effective Death Penalty Act (AEDPA) had passed. See 28



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 2244(d)(1). Ontiveros claims that his petition was filed within the one-

year deadline because (1) the factual predicate date should not begin until after the

30-day period for gubernatorial review has elapsed, and (2) his claim was

“pending,” and thus tolled, see § 2244(d)(2), for the period between the factual

predicate date and his initial state filing. This court has jurisdiction under 28

U.S.C. §§ 1291, 2253. As the facts and procedural history are familiar to the

parties, we do not recite them here except as necessary to explain our decision.

We affirm the district court’s grant of the motion to dismiss.1

I.    Factual Predicate Date

      The district court found that Ontiveros filed his petition 113 days after the

one-year limitations period had ended. Thus, even assuming that the factual

predicate date was defined as starting after the 30-day period for gubernatorial

review had elapsed, Ontivoros’s claim would still be untimely (by 83 days). We

therefore decline to reach this issue.



      1
         Ontiveros’s statutory tolling claims are not waived. See Laws v.
Lamarque, 351 F.3d 919, 924 (9th Cir. 2003) (holding that pro se petitions must be
construed liberally); Bolker v. Comm’r of Internal Revenue, 760 F.2d 1039, 1042
(9th Cir. 1985) (discussing exceptions to waiver rule for issues that are purely legal
or that arise while appeal is pending). However, his equitable tolling claim is
waived for failure to raise it in his opening brief. See Fed. R. App. P. 28 (a)(9)(A);
see also Ind. Towers of Wash. v. Washington, 350 F.3d 925, 929-30 (9th Cir.
2003).

                                           2
II.   Tolling During the Pre-Filing Period

      Ontiveros argues that his claim was “pending,” for tolling purposes, see §

2244(d)(2), during the period between the board’s final decision and Ontiveros’s

initial habeas filing in state superior court (the pre-filing period). This pre-filing

period was 329 days long. If the statute of limitations had been tolled during this

period, Ontiveros’s federal habeas petition would have been timely under AEPDA.

      AEDPA provides for tolling while a prisoner attempts to exhaust his claims

in state court, stating: “The time during which a properly filed application for

State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period of limitation

under this subsection.” § 2244(d)(2). Ontiveros presents cogent arguments for why

tolling during the pre-filing period might be fair, especially in the context of parole

decision challenges. However, we find that the plain language of § 2244(d)(2)

does not permit tolling during the pre-filing period, as it requires that the state

petition be both “properly filed” and “pending.” Although Ontiveros’s state

petition was eventually properly filed and pending, it could not be characterized as

such during the pre-filing period.

      Furthermore, we have previously only permitted tolling “from the time the

first state habeas petition is filed until the California Supreme Court rejects the


                                            3
petitioner’s final collateral challenge.” Nino v. Galaza, 183 F.3d 1003, 1006 (9th

Cir. 1999) (footnote omitted); see also Redd v. McGrath, 343 F.3d 1077, 1084-85

(9th Cir. 2003) (holding that the limitations period begins to run on the day after

the board’s parole decision becomes final). We reject Ontiveros’s argument that In

re Burdan, 86 Cal. Rptr. 3d 549 (Ct. App. 2008), read in conjunction with Evans v.

Chavis, 546 U.S. 189, 193 (2006), justifies tolling during the pre-filing period

simply because his initial state petition was timely by California standards.

Although “the timeliness of a petition for post-conviction relief filed in state court

is governed by state law[,] . . . the circumstances under which a state petition will

be deemed ‘pending’ for purposes of 28 U.S.C. § 2244(d)(2) is a federal question.”

Welch v. Carey, 350 F.3d 1079, 1080 (9th Cir. 2003) (en banc). We hold that

Ontiveros was not entitled to statutory tolling during the pre-filing period and that

his federal habeas petition is time-barred under AEDPA.




AFFIRMED.




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