                                                                              FILED
                            NOT FOR PUBLICATION                               DEC 10 2013

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



                            FOR THE NINTH CIRCUIT


MARK CHIN,                                       No. 11-18011

              Petitioner - Appellant,            D.C. No. 2:10-cv-03258-GEB-
                                                 DAD
  v.

RICK HILL, Warden,                               MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
               Garland E. Burrell, Jr., Senior District Judge, Presiding

                           Submitted December 4, 2013**
                             San Francisco, California

Before: TROTT, THOMAS, and MURGUIA, Circuit Judges.

       Mark Chin appeals from the district court’s dismissal of his petition for a

writ of habeas corpus, which the district court determined was time-barred under




        *
             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 affirm.

      For the first time on appeal, Chin asserts that the state corrections

department’s denial of his administrative appeal, which formed the basis of his

habeas petition, was a “judgment” subject to direct review by the U.S. Supreme

Court, § 2244(d)(1)(A), rather than “the factual predicate of [his] claim,” §

2244(d)(1)(D). He argues that, because his petition is governed by §

2244(d)(1)(A), he was entitled to take advantage of that sub-section’s provision

that AEDPA’s one-year limitation period does not begin to run until “the

expiration of the time for seeking [direct] review.” Consequently, Chin asserts, the

limitation period only began to run 90 days after his administrative appeal was

denied – once the deadline to petition for a writ of certiorari had passed.

      Chin had conceded before the district court that the limitations period began

to run when the denial of his administrative appeal was issued, and he was right.

“[W]hen a habeas petitioner challenges an administrative decision affecting the

‘fact or duration of his confinement,’ AEDPA’s one-year statute of limitations runs

from when the ‘factual predicate’ of the habeas claims ‘could have been discovered

through the exercise of due diligence.’ As a general rule, the state agency’s denial

of an administrative appeal is the ‘factual predicate’ for such habeas claims.”


                                           2
Mardesich v. Cate, 668 F.3d 1164, 1172 (9th Cir. 2012) (internal citations omitted)

(quoting § 2244(d)(1)(D)).

      AFFIRMED.




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