                                                                              FILED
                            NOT FOR PUBLICATION                                JUL 13 2011

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



                            FOR THE NINTH CIRCUIT


TERRY DARRYL KITCHEN, JR.,                       No. 10-16293

              Petitioner - Appellant,            D.C. No. 2:07-cv-00701-MCE-
                                                 DAD
  v.
                                                 MEMORANDUM*
TOM FELKER, Acting Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                        Argued and Submitted June 17, 2011
                             San Francisco, California

Before: BYBEE and MURGUIA, Circuit Judges, and SINGLETON, Senior
District Judge.**

       Appellant Terry Kitchen, Jr., (“Kitchen”) appeals the district court’s denial

of his 28 U.S.C. § 2254 habeas petition as untimely. We review de novo whether



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
the statute of limitations for a habeas petition should be tolled. Harris v. Carter,

515 F.3d 1051, 1054 (9th Cir. 2008).

      Kitchen acknowledges that he did not file his federal petition within the one

year limitations period prescribed by 28 U.S.C. § 2244(d)(1) but contends that he

is entitled to approximately 18 months of equitable tolling. Although Kitchen

presents his claim as one of equitable tolling, he is substantively arguing that the

statute of limitations should have begun on May 7, 2006, when he discovered the

factual predicate for his federal claim. See 28 U.S.C. § 2244(d)(1)(D).

      In October 2002, Kitchen pled guilty to one count of second degree murder

with an enhancement and one count of forcible sexual penetration. After Kitchen’s

conviction and sentence were upheld on appeal, he was no longer represented by

counsel. Shortly before Kitchen committed the underlying crimes, he was given a

psychological evaluation by Dr. Laura Doty, who noted that Kitchen suffered from

learning deficits and other psychological issues. On April 6, 2005, Kitchen’s

family retained counsel to represent Kitchen in his post-conviction proceedings.

On March 27, 2006, counsel asked Dr. Doty to evaluate Kitchen’s competence

from 2001 to 2002, while the plea negotiations were proceeding. Kitchen asserts

he was entitled to equitable tolling until May 7, 2006, when counsel received Dr.




                                          2
Doty’s report that Kitchen suffered from a significant mental impairment at the

time he entered his plea—the factual predicate for his claim.

      A habeas petitioner bears the burden of proving that he or she exercised due

diligence in discovering the factual predicate for his or her claim in order for the

statute of limitations to begin running from the date he or she discovered the

factual predicate of the claim. See Majoy v. Roe, 296 F.3d 770, 777 n.3 (9th Cir.

2002). Kitchen’s counsel knew of Dr. Doty’s initial evaluation in 2005, and he

knew enough to ask her to re-evaluate Kitchen on March 27, 2006. See Hasan v.

Galaza, 254 F.3d 1150, 1154 n.3 (citing Owens v. Boyd, 235 F.3d 356, 359 (7th

Cir. 2000)). At this point, counsel should have promptly filed a protective petition

in federal court along with a motion asking the federal court to stay and abey the

federal habeas proceedings until state remedies were exhausted. See Pace v.

DiGuglielmo, 544 U.S. 408, 416 (2005).

      The factual predicate for Kitchen’s federal petition existed at the time of his

plea negotiations and was discoverable through due diligence no later than March




                                           3
27, 2006. Thus, Kitchen’s federal habeas petition, dated April 12, 2007, was

untimely.1

      AFFIRMED.




      1
          Since the factual predicate was known or should have been known after
Kitchen retained current counsel, and more than one year before April 12, 2007,
the state of Kitchen’s mental health prior to retaining counsel as a predicate for
equitable tolling is irrelevant. Since counsel knew or should have known of the
factual predicate no later than March 27, 2006, any mental or emotional difficulties
Kitchen may have had would also be irrelevant to toll the statute of limitations
after this date as well.

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