                                                                                 FILED
                            NOT FOR PUBLICATION                                   JUL 25 2013

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



                             FOR THE NINTH CIRCUIT

JUAN FLORES, JR.,                                 No. 10-55788

              Petitioner - Appellant,             D.C. No. 8:09-CV-01447-DMG-
                                                  JEM
  v.

MATTHEW L. CATE, Secretary of the                 MEMORANDUM*
California Department of Corrections and
Rehabilitation,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                      Dolly M. Gee, District Judge, Presiding

                        Argued and Submitted July 10, 2013
                               Pasadena, California

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.

       Petitioner appeals the district court’s dismissal, as untimely, of his petition

for a writ of habeas corpus under 28 U.S.C. § 2254. Reviewing de novo, Noble v.

Adams, 676 F.3d 1180, 1181 (9th Cir. 2012), we affirm.




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Petitioner’s underlying conviction became final on June 10, 2008, ninety

days after the California Supreme Court denied review. Without tolling, the one-

year limitation period provided by 28 U.S.C. § 2244(d)(1) would have expired on

June 10, 2009. Petitioner filed his federal habeas petition on December 3, 2009.

      1. The statutory toll provided by 28 U.S.C. § 2244(d)(2) applies only if the

petitioner "properly filed" an application for collateral review in state court. A

state habeas petition is not "properly filed" for these purposes if the state court

ruled that the petition was untimely as a matter of state law. Pace v. DiGuglielmo,

544 U.S. 408, 417 (2005).

      Here, the California Superior Court held that Petitioner’s state habeas

petition was untimely. The California Court of Appeal denied his petition without

explanation or citation. The California Supreme Court denied the petition for

review without explanation but with several citations, including one to In re Swain,

209 P.2d 793, 796 (Cal. 1949).

      A citation to Swain may indicate that a state habeas petition is untimely

under California law. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per

curiam); La Crosse v. Kernan, 244 F.3d 702, 704 & n.10 (9th Cir. 2001). We have

held that "a citation to Swain by itself [is not] conclusive proof of untimeliness"

and that a "citation to Swain by itself [does not] mean that a habeas application was


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untimely filed." Cross v. Sisto, 676 F.3d 1172, 1178 (9th Cir. 2012). But,

although a citation to Swain does not conclusively prove untimeliness, neither does

it conclusively prove a different ground of decision. Here, the California Supreme

Court’s citation to Swain does not stand "by itself." To the contrary, it must be

viewed in light of the Superior Court’s reasoned determination that the petition

was untimely as a matter of state law. Petitioner has not shown that the California

Supreme Court’s decision rested on a different ground.

      Neither Cross nor Trigueros v. Adams, 658 F.3d 983, 990 (9th Cir. 2011),

requires a different result. In Cross, the California Superior Court had denied the

petition for failure to state a prima facie case for relief, and the California Supreme

Court had denied the petition without comment but with a citation to Swain.

Cross, 676 F.3d at 1174–75. We held that, in that context, the California Supreme

Court’s citation to Swain reflected the grant of a demurrer instead of a decision

respecting timeliness. Id. at 1178. In Trigueros, the Superior Court had denied the

petition as untimely and on the merits. The California Supreme Court had denied

it without explanation or citation. Trigueros, 658 F.3d at 986. Because the

California Supreme Court had requested informal briefing on the merits despite the

Superior Court’s finding of untimeliness, we held that its denial had impliedly




                                           3
overruled the lower court’s timeliness decision and had decided the petition on the

merits. Id. at 990–91.

      Here, by contrast, the Superior Court found the petition untimely, and the

proceedings before the California Supreme Court were consistent with that ground

for denial. Under these circumstances, the § 2244(d)(2) statutory toll does not

apply. Bonner v. Carey, 425 F.3d 1145, 1147 (9th Cir. 2005).

      2. We need not, and do not, decide whether equitable tolling applied

between June 10, 2008, and July 16, 2008, when Petitioner received his case file.

Even if it did apply, that 36-day toll would not render the petition timely because

Petitioner filed his petition after July 16, 2009.

      AFFIRMED.




                                            4
                                                                                FILED
Flores v. Cate, No. 10-55788                                                     JUL 25 2013

                                                                             MOLLY C. DWYER, CLERK
WATFORD, Circuit Judge, dissenting:                                           U.S. COURT OF APPEALS



         I disagree with the majority that the California Supreme Court’s citation to

Swain indicates that it considered Flores’s state habeas petitions untimely. A

Swain citation does not generally indicate untimeliness. See Cross v. Sisto, 676

F.3d 1172, 1178 (9th Cir. 2012). California courts instead “cit[e] the controlling

decisions, i.e., Clark and Robbins” to signal untimeliness. Walker v. Martin, 131

S. Ct. 1120, 1124 (2011). When California courts cite Swain and Duvall together,

as the California Supreme Court did here, that suggests a different procedural bar

applies: failure to allege facts with sufficient particularity. See Stancle v. Clay, 692

F.3d 948, 958 (9th Cir. 2012); Cross, 676 F.3d at 1176–77; Gaston v. Palmer, 417

F.3d 1030, 1038–39 (9th Cir. 2005), as amended by order, 447 F.3d 1165 (9th Cir.

2006).

         Our decision in Trigueros v. Adams, 658 F.3d 983 (9th Cir. 2011), controls

the outcome of this case. There, we inferred that the California Supreme Court had

overruled a lower court’s untimeliness finding based on a request for informal

briefing on the merits and a subsequent summary denial without citations. Id. at

990. Here, the same inference is at least as strong. The superior court dismissed

Flores’s petition on the basis of untimeliness (citing Clark) as well as two other

procedural bars. The California Supreme Court did not simply deny Flores’s
petition without citations, which would have required us to infer that the petition

was denied on the same grounds relied on by the superior court. See Bonner v.

Carey, 425 F.3d 1145, 1148 & n.13 (9th Cir. 2005), as amended by order, 439

F.3d 993 (9th Cir. 2006). Instead, the California Supreme Court went out of its

way, through the use of citations, to adopt the two procedural bars cited by the

superior court that did not involve untimeliness, added a third procedural bar of its

own, and then conspicuously omitted any citation to Clark or Robbins. Under

these circumstances, I would infer that the California Supreme Court impliedly

overruled the superior court’s untimeliness finding.




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