                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 ANTONIO ORPIADA,                                      No. 12-17131
              Petitioner-Appellant,
                                                         D.C. No.
                       v.                             3:11-cv-00013-
                                                         RCJ-VPC
 E. K. MCDANIEL; NEVADA
 ATTORNEY GENERAL,
            Respondents-Appellees.                       OPINION


         Appeal from the United States District Court
                  for the District of Nevada
         Robert Clive Jones, District Judge, Presiding

                    Argued and Submitted
          March 12, 2014—San Francisco, California

                            Filed May 7, 2014

  Before: M. Margaret McKeown and Ronald M. Gould,
Circuit Judges, and Gordon J. Quist, Senior District Judge.*

                   Opinion by Judge McKeown




  *
    The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
2                     ORPIADA V. MCDANIEL

                           SUMMARY**


                          Habeas Corpus

    The panel affirmed the district court’s dismissal of an
untimely 28 U.S.C. § 2254 habeas corpus petition.

    Petitioner sought to apply the prison mailbox rule to
render timely his § 2254 petition, which was three days late.
The panel held that, because Nevada has rejected the prison
mailbox rule for the filing of state habeas corpus petitions, the
state petition was not “properly filed” and petitioner was not
entitled to tolling until the date that the state district court
filed the pro se state habeas petition, not the day that
petitioner delivered the petition to prison officials for mailing.


                             COUNSEL

Jonathan M. Kirshbaum (argued), Research and Writing
Specialist; Rene L. Valladares, Federal Public Defender; John
C. Lambrose, Assistant Federal Public Defender, Las Vegas,
Nevada, for Petitioner-Appellant.

Jeffrey M. Conner (argued), Deputy Attorney General;
Catherine Cortez Masto, Attorney General, Carson City,
Nevada, for Respondents-Appellees.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   ORPIADA V. MCDANIEL                          3

                          OPINION

McKEOWN, Circuit Judge:

     This case raises the familiar question of whether a
prisoner timely filed a petition for a writ of habeas corpus in
federal court. For Antonio Orpiada, an inmate in Nevada
State prison, the answer hinges on whether the prison mailbox
rule applies to the filing of his state habeas corpus petition for
the purpose of triggering statutory tolling of the Antiterrorism
and Effective Death Penalty Act (“AEDPA”) limitations
period. See 28 U.S.C. § 2244(d)(2) (1996). If the mailbox
rule does apply, as Orpiada asserts, his state petition is
deemed filed on the date he delivered the petition to prison
officials for mailing. See Saffold v. Newland, 250 F.3d 1262,
1268 (2000), vacated on other grounds, 536 U.S. 214 (2002).
If, however, the rule does not apply, the tolling period began
on the date the state court clerk received Orpiada’s state
petition, and the filing of the federal petition exceeds the one-
year limitations period by three days. See Artuz v. Bennett,
531 U.S. 4, 8–9 (2000).

     The combination of Supreme Court and Nevada precedent
offers no wiggle room on the answer. We are bound by the
Supreme Court’s directive to apply state procedural law to
determine whether Orpiada’s habeas petition was properly
filed, including when it was deemed filed. See id. Nevada
has squarely rejected the prison mailbox rule for the filing of
its state habeas corpus petitions. Gonzales v. State, 53 P.3d
901, 904 (Nev. 2002). Unfortunately for Orpiada, so too
must we in assessing his petition and AEDPA tolling.
Consequently, we conclude that Orpiada’s federal petition is
time barred.
4                     ORPIADA V. MCDANIEL

        FACTUAL AND PROCEDURAL BACKGROUND

    Following trial in Nevada, a jury convicted Orpiada of
two counts of attempted murder and other related offenses.
The parties agree that Orpiada’s conviction became final on
June 2, 2005. On February 6, 2006, the state district court
filed Orpiada’s pro se state habeas corpus petition. Orpiada
signed and dated the petition and certificate of service by
mail on February 2, 2006. The state trial court denied the
petition. The Supreme Court of Nevada affirmed the trial
court’s decision by order dated December 10, 2010, and then
issued its remittitur on January 5, 2011.

    On that same day, January 5, 2011, Orpiada mailed a pro
se federal habeas corpus petition to the United States District
Court in Nevada. After the district court granted Orpiada’s
motion for assignment of counsel, counsel filed an amended
petition on May 4, 2011. The district court ruled that the
amended petition did not relate back to his original pro se
petition. The district court then held that the amended
petition was untimely because a total of 368 nontolled days
had elapsed after Orpiada’s conviction became final,
exceeding the one-year AEDPA limitations period.1 The
district court determined that the prison mailbox rule did not


    1
   The limitations period began to run on June 2, 2005, ninety days after
the Supreme Court of Nevada affirmed Orpiada’s conviction. See
28 U.S.C. § 2244(d)(1)(A); Sup. Ct. R. 13(1). Two hundred forty-nine
days elapsed between June 2, 2005 and February 6, 2006, the date the
district court determined marked the beginning of the tolling period under
§ 2244(d)(2). The limitations period then resumed running upon issuance
of remittitur on January 5, 2011. One hundred nineteen nontolled days
then elapsed between January 5, 2011 and May 4, 2011, the filing of the
amended federal petition. Therefore, the district court counted a total of
368 nontolled days.
                      ORPIADA V. MCDANIEL                              5

apply to Orpiada’s state petition because Nevada does not
apply the rule to its state habeas filings.

                            ANALYSIS

    The operative question for determining the timeliness of
Orpiada’s petition is whether the prison mailbox rule applies
to the filing of his Nevada state habeas corpus petition for
purposes of calculating tolling of the AEDPA limitations
period. We have yet to address this precise question
regarding Nevada state law.2

    AEDPA provides a one-year limitations period for a state
prisoner to apply for a writ of habeas corpus in federal court.
28 U.S.C. § 2244(d)(1); Campbell v. Henry, 614 F.3d 1056,
1058 (9th Cir. 2010). The limitations period is tolled during
the time in “which a properly filed application for State post-
conviction or other collateral review with respect to the
pertinent judgment or claim is pending.” 28 U.S.C.
§ 2244(d)(2). As the Supreme Court explained:

         [A]n application is ‘properly filed’ when its
         delivery and acceptance are in compliance
         with the applicable laws and rules governing
         filings. These usually prescribe, for example,
         the form of the document, the time limits
         upon its delivery, the court and office in


 2
   In a case where timeliness was not an issue, we noted that the mailbox
rule does not apply to Nevada habeas filings. See Koerner v. Grigas,
328 F.3d 1039, 1043 n.1 (9th Cir. 2003) (“[B]ecause Nevada does not
recognize a ‘prison mailbox rule’ for post-conviction petitions, [the
petition] was not filed under Nevada law until actually received by the
clerk of court.” (citation omitted)).
6                  ORPIADA V. MCDANIEL

        which it must be lodged, and the requisite
        filing fee.

Artuz, 531 U.S. at 8 (citations and footnote omitted).

     These “mechanical rules that are enforceable by the
clerks” are “‘condition[s] to filing’” that must be met for an
application to be properly filed, in contrast to conditions
“which go to the ability to obtain relief” that do not affect
whether the petition is properly filed. Pace v. DiGuglielmo,
544 U.S. 408, 414–15, 417 (2005). In Pace, the Supreme
Court clarified that even state time limits subject to judicially
reviewable exceptions are filing conditions that impact
whether a state petition is “properly filed” and eligible for
tolling. 544 U.S. at 417 (“[T]here is an obvious distinction
between time limits, which go to the very initiation of a
petition and a court’s ability to consider that petition, and the
type of ‘rule of decision’ procedural bars at issue in Artuz,
which go to the ability to obtain relief.”).

    Consequently, to determine whether Orpiada’s state post-
conviction petition for relief is a “properly filed” application
that is eligible for tolling we look to Nevada state filing
requirements. See Campbell, 614 F.3d at 1060 (“Tolling . . .
is not appropriate for a petition that is untimely under state
law, because such a petition is [not properly filed].”). The
state district court clerk stamped Orpiada’s state petition as
filed on February 6, 2006, which would mean that Orpiada’s
federal petition was three days late. Orpiada contends that,
under the prison mailbox rule, his petition was eligible to
begin tolling the AEDPA limitations period on February 2,
2006—the day he turned it over to prison authorities for
mailing. Under the latter scenario, Orpiada’s federal petition
would be timely.
                      ORPIADA V. MCDANIEL                              7

    Unfortunately for Orpiada, Nevada law sinks his claim.
Although Nevada applies the prison mailbox rule to state
notices of appeal filed by pro se prisoners, it has expressly
rejected application of the rule to state post-conviction relief
petitions. See Gonzales, 53 P.3d at 903–04. In Gonzales, the
Supreme Court of Nevada considered the rationale underlying
the mailbox rule, and decided that policy considerations were
not compelling enough in the habeas corpus context to
warrant application of the rule. 53 P.3d at 903. The court
reasoned that prisoners have ample time to file post-
conviction petitions despite the “‘vagaries of the prison mail
system,’” in contrast to the shorter time period for notices of
appeal. Id. It also noted that some late petitions may be
forgiven by a showing of good cause and prejudice. Id. at
903–04.

     Orpiada argues that application of the prison mailbox rule
is controlled by federal law without regard to state procedural
rules, pointing to Ninth Circuit cases that applied the prison
mailbox rule to state petitions for AEDPA tolling. This
argument is unavailing. We have not applied the prison
mailbox rule for AEDPA tolling where, as here, the petition
is mailed in a state that expressly rejects the mailbox rule for
its state habeas petition filings.

    Other cases applying the prison mailbox arise from
convictions in California—a state that does not reject the
prison mailbox rule and which has indeterminate rather than
fixed time limitations for filing habeas petitions.3 See Carey


 3
   Situations in which state courts have not considered the mailbox rule
because there is no fixed filing deadline do not offer a useful analog or
precedent. See, e.g., Fernandez v. Artuz, 402 F.3d 111, 113–16 (2d Cir.
2005) (applying the mailbox rule to a New York coram nobis petition
8                    ORPIADA V. MCDANIEL

v. Saffold, 536 U.S. 214, 222 (2002); see, e.g., Porter v.
Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“In determining
when a pro se state or federal petition is filed, the ‘mailbox’
rule applies.”). Orpiada argues that these cases involving
California petitions are applicable because California has not
expressly adopted the mailbox rule for its habeas corpus
petitions. The trouble with Orpiada’s argument is that
Nevada has expressly rejected the mailbox rule and it is
Nevada, not California or other state law that controls.

    Our sister circuits are in accord with our approach. See
Vroman v. Brigano, 346 F.3d 598, 604 (6th Cir. 2003)
(declining to apply the mailbox rule to a post-conviction Ohio
petition because the Ohio Supreme Court has expressly
rejected the rule); Burger v. Scott, 317 F.3d 1133, 1140–41
(10th Cir. 2003) (noting that the mailbox rule does not apply
to post-conviction petitions in Oklahoma based on state law);
cf. Richards v. Thaler, 710 F.3d 573, 576–79 (5th Cir. 2013)
(concluding that, because Texas courts changed to recognize
the mailbox rule for post-conviction filings, the federal courts
accordingly would apply it to state petitions filed in Texas);
Ray v. Clements, 700 F.3d 993, 1002–06 (7th Cir. 2012)
(applying the mailbox rule to a post-conviction petition filed
in Wisconsin based on Wisconsin law).

    We note that tolling for petitioners relying on the prison
mail system under the doctrine of equitable tolling remains
available if the circumstances—such as prison official
interference with the mail—warrant relief. See Holland v.
Florida, 560 U.S. 631, 649 (2010). However, Orpiada raised


while noting, “New York State prescribes no deadline for coram nobis
petitions, [and thus] New York State courts will never have occasion to
decide whether the prison mailbox rule should apply to them.”).
                ORPIADA V. MCDANIEL                  9

no such special circumstances here.   Orpiada’s federal
petition is time barred.

   AFFIRMED.
