Serena Gateb v. Jo Gentry , 700 F. App'x 667 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERENA GATEB, No. 16-16506
Petitioner-Appellant, D.C. No.
2:14-cv-00895-JAD-GWF
v.
JO GENTRY, Warden and ATTORNEY MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted September 14, 2017**
San Francisco, California
Before: SILER,*** TALLMAN, and BEA, Circuit Judges.
Petitioner Serena Gateb appeals the district court’s dismissal of her habeas
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
petition as untimely. The district court granted a certificate of appealability. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and § 2253. We affirm.
1. We review de novo the dismissal of a petition for a writ of habeas corpus
under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) as time-
barred. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). The district court’s
application of the relation-back doctrine under Federal Rule of Civil Procedure 15(c)
is also reviewed de novo. Williams v. Boeing Co., 517 F.3d 1120, 1132 (9th Cir.
2008). “An amended habeas petition . . . does not relate back (and thereby escape
AEDPA’s one-year time limit) when it asserts a new ground for relief supported by
facts that differ in both time and type from those the original pleading set forth.”
Mayle v. Felix, 545 U.S. 644, 650 (2005). For a claim brought in an amended
petition for a writ of habeas corpus to relate back to the original petition, the claim
must arise out of “a common ‘core of operative facts’ uniting the original and newly
asserted claims.” Id. at 659.
2. The district court properly concluded that Gateb’s amended petition did
not relate back to the one-page notice of appeal she previously submitted. The notice
of appeal contained no factual allegations, no claims, and no requests for relief. Even
though pro se habeas petitions are “given the benefit of liberal construction,” Porter
v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010), this “liberal interpretation . . . may not
supply . . . [a] claim that [was] not initially pled.” Ivey v. Bd. of Regents of Univ. of
2 16-16506
Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Compounding the lack of factual
allegations, claims, and requests for relief, Gateb checked the box on her application
to proceed in forma pauperis indicating that she was the “Plaintiff (filing [a civil
rights lawsuit under] 42 U.S.C. § 1983).” The district court understandably
construed her initial filing as a civil rights case and not a habeas petition so that her
subsequent habeas petition could not relate back to her initial filing.
3. We also review de novo whether equitable tolling applies. Fue v. Biter,
842 F.3d 650, 653 (9th Cir. 2016) (en banc). To be entitled to equitable tolling of
AEDPA’s one-year statute of limitations, a habeas petitioner must demonstrate “(1)
that [she] has been pursuing [her] rights diligently, and (2) that some extraordinary
circumstances stood in [her] way and prevented timely filing.” Holland v. Florida,
560 U.S. 631, 649 (2010) (internal quotation omitted). Gateb does not show
extraordinary circumstances warranting equitable tolling. Her filings were not
handled improperly or dismissed incorrectly by the district court, there was no
excessive delay in the district court’s actions, and even after the magistrate judge’s
report and recommendation, Gateb had more than a month to file a timely § 2254
petition.
AFFIRMED.
3 16-16506