Torlucci v. Evans , 364 F. App'x 338 ( 2010 )


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  •                                                                                       FILED
    NOT FOR PUBLICATION                                        FEB 02 2010
    UNITED STATES COURT OF APPEALS                             MOLLY C. DWYER, CLERK
    FOR THE NINTH CIRCUIT                                   U .S. C O U R T OF APPE ALS
    ARTHUR TORLUCCI                                        No. 07-56794
    Petitioner - Appellant,                  D.C. No. CV-04-09878-GHK
    v.
    MEMORANDUM *
    MICHAEL S. EVANS
    Respondent - Appellee.
    Appeal from the United States District Court
    for the Central District of California
    George H. King, District Judge, Presiding
    Argued and Submitted December 7, 2009
    Pasadena, California
    Before: PREGERSON and PAEZ, Circuit Judges, and MAHAN,** District Judge.
    *
    This disposition is not appropriate for publication and is not precedent except as
    provided by 9th Cir. R. 36-3.
    **
    The Honorable James C. Mahan, United States District Judge for the District of
    Nevada, sitting by designation.
    Petitioner-Appellant Arthur Torlucci (hereinafter “petitioner”), a California
    state prisoner, appeals the district court’s finding that his 
    28 U.S.C. § 2254
     habeas
    corpus petition is time-barred by the statute of limitations created by Antiterrorism
    and Effective Death Penalty Act of 1996’s (hereinafter “AEDPA”). We have
    jurisdiction pursuant to 
    28 U.S.C. § 2253
    .
    We review de novo a district court’s decision to dismiss a § 2254 habeas
    petition as untimely. Raspberry v. Garcia, 
    448 F.3d 1150
    , 1153 (9th Cir. 2006);
    King v. Roe, 
    340 F.3d 821
    , 822 (9th Cir. 2003). Findings of fact underlying a claim
    for tolling the limitation period are reviewed for clear error. Raspberry, 
    448 F.3d at 1153
    .
    Because the parties are well acquainted with the facts and procedural history
    of this case, no further elaboration is necessary. For the reasons discussed below,
    we affirm.
    I.      Interval Tolling
    We agree with the district court that petitioner is not entitled to interval
    tolling. Petitioner’s conviction became final on July 21, 1998. Absent tolling, the
    statute of limitations would have expired on July 21, 1999. Petitioner’s first filing
    was 331 days after his judgment became final, and his second filing was eight
    months after that. As discussed below, petitioner is not entitled to interval tolling
    for either of these periods; therefore, his federal petition, filed five years later, is
    untimely.
    Petitioner’s first habeas petition, filed in the California Court of Appeal on
    April 17, 1998, and summarily denied on May 18, 1998, was incapable of tolling
    the statute of limitations because it was filed before petitioner’s conviction was
    final. See 
    28 U.S.C. §2244
    (d)(1).        Petitioner is not entitled to interval tolling
    for the 331 day gap between the filing of his April 17, 1998, petition and the filing
    of his April 15, 1999, petition because he raised different claims in each petition.
    Gaston v. Palmer, 
    417 F.3d 1030
    , 1043 (9th Cir. 2005) (holding “a California
    habeas applicant is not entitled to interval tolling if he abandons all of his claims in
    his first application and his second application sets forth new and different
    claims”).
    Petitioner is likewise not entitled to tolling for the eight month interval
    between the Los Angeles County Superior Court’s denial of petitioner’s April 15,
    1999, habeas petition and the filing of his January 19, 2000, California Court of
    Appeal habeas petition because petitioner failed to point to particular
    circumstances to explain the delay. See Evans v. Chavis, 
    546 U.S. 189
    , 201 (2006)
    (holding an unjustified six month delay in filing could not “fall within the scope of
    the federal statutory word ‘pending’”). See also In re Clark, 
    855 P.2d 729
    , 738
    (Cal. 1993). Further, petitioner failed to point to particular circumstances to
    explain the substantial delay, as the California Supreme Court requires. In re
    Clark, 
    855 P.2d 729
    , 738 (Cal. 1993).
    Additionally, petitioner’s state habeas petitions, filed after his January 19,
    2000, habeas petition, could not toll the statute of limitations because it had already
    expired. See Ferguson v. Palmateer, 
    321 F.3d 820
    , 823 (9th Cir. 2003).
    II.   Equitable Tolling
    We also agree with the district court’s finding that petitioner is not
    entitled to equitable tolling for the gaps between his filings because he suffers from
    bipolar disorder. The district court’s decision was based upon: 1) the magistrate
    judge’s extensive review of petitioner’s mental health records between 1995 and
    2005 (some 775 pages); 2) petitioner’s expert’s report; and 3) the magistrate
    judge’s subsequent determination that petitioner was competent. Indeed,
    petitioner’s mental health evaluations reflected, and his own expert testified, that
    petitioner’s thought process was within normal limits during the pertinent time
    period.
    Consequently, we affirm the district court’s dismissal of petitioner’s federal
    habeas petition as untimely.
    AFFIRMED.