                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              OCT 30 2013

                                                                          MOLLY C. DWYER, CLERK
                                                 No. 12-15916               U.S. COURT OF APPEALS

HUGO APARICIO,
                                                 D.C. No. 3:07-cv-00427-LRH-
              Petitioner-Appellant,              VPC

  v.
                                                 MEMORANDUM*
RENEE BAKER; et al.,

              Respondents-Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding

                           Submitted October 10, 2013**
                             San Francisco, California

Before: WALLACE, M. SMITH, and IKUTA, Circuit Judges.

       Hugo Aparicio appeals from the district court’s judgment denying his

petition for a writ of habeas corpus on the ground that it was untimely pursuant to




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d).

      We reject Aparicio’s argument that the one-year limitations period in which

to petition for a writ based on ineffective assistance of counsel begins to run at the

conclusion of proceedings regarding a prisoner’s first state post-conviction relief in

states that do not permit such claims to be raised on direct review. This argument

fails because 28 U.S.C. § 2244(d) does not provide for any such exception to the

statute of limitations. See also Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010)

(“The period between when direct review becomes final and the filing of a state

habeas petition is not tolled.”). Aparicio’s untimely second state petition for post-

conviction relief did not toll the statute of limitations, because the federal

limitations period already had expired. See Ferguson v. Palmateer, 321 F.3d 820,

823 (9th Cir. 2003). Aparicio cannot excuse his failure to file his federal habeas

petition within the limitations period on the ground that he first needed to exhaust

his state claims in a second state petition, because habeas petitioners may file a

protective federal petition and then seek to exhaust their state claims after

obtaining a stay and abeyance from the district court. See Rhines v. Weber, 544

U.S. 269, 277–78 (2005). To the extent Aparicio argues in his reply brief that the

one-year limitations period should be equitably tolled, he has waived the argument




                                           2
by failing to raise it in his opening brief. Rizk v. Holder, 629 F.3d 1083, 1091 n.3

(9th Cir. 2011).

      AFFIRMED.




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