Hon Tse v. Scott McEwen , 578 F. App'x 666 ( 2014 )

FILED
NOT FOR PUBLICATION JUN 11 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HON KEUNG TSE, No. 10-56206
Petitioner - Appellant, D.C. No. 2:09-cv-08829-CJC-
MLG
v.
SCOTT MCEWEN, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted February 3, 2014
Pasadena, California
Before: PREGERSON and BERZON, Circuit Judges, and AMON, Chief District
Judge.**
Hon Keung Tse appeals from a judgment dismissing his federal habeas
corpus petition as untimely. We agree with the district court that the petition was
not timely under 28 U.S.C. § 2244(d), and so affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Carol Bagley Amon, Chief District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
Tse argues that AEDPA’s one-year statute of limitations did not begin to run
until March 21, 2008, when he received a complete copy of his trial transcript from
his former attorney and realized that his trial counsel did not discuss a six-year
potential plea offer with him. Relying on 28 U.S.C. § 2244(d)(1)(D), Tse asserts
that because he did not learn of the factual predicate of his ineffective assistance of
counsel claim until he received the trial transcript and had a fellow prisoner review
it, the statute of limitations did not begin to run until this time. However, the trial
transcripts existed and were in the possession of Tse’s appellate and habeas
attorneys since at least early 2006. While represented, Tse was bound by what his
attorneys knew or could have known. See Maples v. Thomas, 132 S. Ct. 912, 922
(2012). Tse has not alleged that either his appellate or habeas counsel abandoned
him, see id. at 922–23, or even that counsel was ineffective for failing to identify
the non-communication-of-plea-offer issue, see Martinez v. Ryan, 132 S. Ct. 1309,
1320 (2012). Tse’s claim that he could not “through the exercise of due diligence”
have discovered the conversation transcribed in these transcripts until March 2008,
when the transcripts had been in the possession of his own agents for several years,
therefore fails. See 28 U.S.C. § 2244(d)(1)(D).
Tse further argues that the district court erred by: (1) not applying statutory
tolling to the time period between when the Superior Court denied his first state
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habeas petition and the filing of the first state habeas petition in the California
Supreme Court; and (2) not applying equitable tolling to the period during which
the filing of Tse’s first state habeas petition was hampered by an unforeseen
accident involving a key member of his legal team. Tse recognizes that even if we
apply statutory tolling to the interval between the Superior Court’s denial of his
first state habeas petition and the filing of his first state habeas petition in the
California Supreme Court, his federal petition is untimely absent equitable tolling.
We agree with the district court that Tse is not entitled to equitable tolling.
Tse failed to demonstrate that an “extraordinary circumstance stood in his way and
prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal
quotation marks omitted). The extraordinary circumstance Tse relies on occurred
in 2006, before Tse filed his first state post-conviction petition. Its effect on Tse’s
ability to file a timely federal petition years later is far too attenuated to warrant
equitable relief. After the state Supreme Court rejected his second post-conviction
petition on March 18, 2009, Tse waited until November 25, 2009, to file his federal
petition. During that time, he elected to bring a third round of state habeas
petitions, pro se, rather than proceed to federal court. Tse does not argue that the
third round of state petitions is itself a basis for equitable tolling, and, because the
petitions were not properly filed in state court, there is no statutory tolling for that
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period either. See Walker v. Martin, 131 S. Ct. 1120, 1125 (2011). In such
circumstances, we cannot say that an incident occurring three years before Tse
filed his federal petition was a “proximate cause[]” of the late filing. Roy v.
Lampert, 465 F.3d 964, 973 (9th Cir. 2006) (quoting Stillman v. LaMarque, 319
F.3d 1199, 1203 (9th Cir. 2003)).
For the foregoing reasons, we AFFIRM.
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