Lonnie Stringer v. Elvin Valenzuela , 542 F. App'x 616 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LONNIE DAVID STRINGER, No. 11-16009
Petitioner - Appellant, D.C. No. 2:09-CV-02980-GEB-
EFB
v.
ELVIN VALENZUELA, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Junior, Senior District Judge, Presiding
Argued and Submitted October 8, 2013
San Francisco, California
Before: D.W. NELSON, M. SMITH, and IKUTA, Circuit Judges.
Lonnie David Stringer (“Stringer”) appeals the dismissal of his federal
habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C. §§ 1291
and 2253. We affirm in part, reverse in part, and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court correctly concluded that Stringer was not entitled to
statutory tolling. The state court’s determination that his January 5, 2006 state
petition was timely did not toll the one year statute of limitations applicable to
Stringer’s federal habeas petition. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th
Cir. 2009).
The district court also concluded correctly that the federal statute of
limitations began to run well before Stringer discovered additional facts in support
of a third party culpability defense in 2004 or 2005. Hasan v. Galaza, 254 F.3d
1150, 1154 n.3 (9th Cir. 2001). The record is clear that Stringer was aware of the
existence of a third party culpability defense at the time of his trial in 1996, and the
federal statute of limitations therefore started when his conviction became final.
28 U.S.C. § 2244(d)(1).
Additionally, the district court concluded correctly that Stringer is not
entitled to equitable tolling. Stringer has failed to show reasonable diligence in
pursuing his rights. Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (citing
Holland v. Florida, 560 U.S. 631, 130 S. Ct. 2549, 2563 (2010)). His current
counsel took over the case in 2003 and was aware of and working on developing a
federal habeas claim no later than 2004. However, Stringer did not file a petition
until January 5, 2006.
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The district court did not consider whether Stringer’s claim of actual
innocence would have excused the untimely filing of his federal habeas petition.
We remand for a determination of whether Stringer meets the actual innocence
exception to the federal one-year statute of limitations. McQuiggins v. Perkins,
— U.S. —, 133 S. Ct. 1924 (2013).
AFFIRMED in part; REVERSED in part; REMANDED.
3