Angel Alvarez v. Robert K. Wong , 425 F. App'x 652 ( 2011 )


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  •                                                                              FILED
    NOT FOR PUBLICATION                               APR 05 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U.S . CO U RT OF AP PE A LS
    FOR THE NINTH CIRCUIT
    ANGEL JESUS ALVAREZ,                              No. 09-15547
    Petitioner - Appellant,             D.C. No. 5:06-cv-05027-JF
    v.
    MEMORANDUM *
    ROBERT K. WONG,
    Respondent - Appellee.
    Appeal from the United States District Court
    for the Northern District of California
    Jeremy D. Fogel, District Judge, Presiding
    Argued and Submitted March 14, 2011
    San Francisco, California
    Before: WALLACE, NOONAN, and CLIFTON, Circuit Judges.
    Angel Jesus Alvarez appeals the district court's dismissal of his petition for
    writ of habeas corpus as untimely. We affirm.
    Absent showings of 'cause' and 'prejudice,' not established by Alvarez
    here, federal habeas relief is unavailable when 'a state court [has] declined to
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    address a prisonerùs federal claims because the prisoner had failed to meet a state
    procedural requirement,' and 'the state judgment rests on independent and
    adequate state procedural grounds.' Coleman v. Thompson, 
    501 U.S. 722
    , 729-730
    (1991). The Supreme Court recently held that denial of habeas relief by the
    California Supreme Court on the ground that the application for relief was filed
    untimely was an independent and adequate state procedural ground requiring
    denial of a subsequent habeas petition in federal court, overturning this court's
    precedent to the contrary. Walµer v. Martin, 
    131 S. Ct. 1120
    (2011). The California
    Supreme Court denied Alvarez's petition with a citation to In re Clarµ, 
    855 P.2d 729
    (Cal. 1993). The citation to Clarµ signals the court's conclusion that the
    petition was untimely. 
    Walµer, 131 S. Ct. at 1124
    .
    Alvarez's petition did not qualify for equitable tolling, in any event. He did
    not demonstrate an 'extraordinary circumstance' standing in his way to prevent
    timely filing, under Holland v. Florida, 
    130 S. Ct. 2549
    , 2562 (2010), nor attorney
    action that rose to the level of 'egregious' misconduct, as described in Spitsyn v.
    Moore, 
    345 F.3d 796
    , 801 (9th Cir. 2003). See Miranda v. Castro, 
    292 F.3d 1063
    ,
    1066-67 (9th Cir. 2002); Frye v. Hicµman, 
    273 F.3d 1144
    , 1146 (9th Cir. 2001);
    and Green v. White, 
    223 F.3d 1001
    , 1003 (9th Cir. 2000).
    AFFIRMED.
    2
    FILED
    Alvarez v. Wong, No. 09-15547                                                APR 05 2011
    MOLLY C. DWYER, CLERK
    WALLACE, Senior Circuit Judge, concurring:                                U.S . CO U RT OF AP PE A LS
    I concur in the memorandum disposition except for the last paragraph which
    is unnecessary for our decision. Walµer v. Martin decides the appeal. 
    131 S. Ct. 1120
    (2011).
    I write separately to express my disappointment that neither counsel cited
    Walµer by a Federal Rule of Appellate Procedure Rule 28(j) letter and one attorney
    was unaware of its existence. We rely on counsel to provide pertinent authority so
    that we can maµe correct decisions. I had found Walµer myself and am perplexed
    that Alvarez's counsel missed it. I am also perplexed that counsel for the State of
    California failed to provide Walµer to us. At oral argument, counsel stated she was
    aware of Walµer but chose not to file a 28(j) letter. Nevertheless, she was prepared
    to and did argue that Walµer was controlling precedent. By failing to provide
    Walµer in a 28(j) letter, the State's counsel deprived Alvarez's counsel of the
    chance to respond, and thereby deprived us of possibly helpful oral argument.