Paul Hurth v. Rosanne Campbell , 537 F. App'x 696 ( 2013 )

FILED
NOT FOR PUBLICATION AUG 08 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL THOMAS HURTH, ) No. 10-17575
)
Petitioner – Appellant, ) D.C. No. 1:05-cv-00597-OWW-JMD
)
v. ) MEMORANDUM*
)
ROSANNE CAMPBELL, )
)
Respondent – Appellee. )
)
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Argued and Submitted July 9, 2013
San Francisco, California
Before: FERNANDEZ, PAEZ, and BERZON, Circuit Judges.
Paul Thomas Hurth appeals the district court’s denial of his petition for
habeas corpus relief. See 28 U.S.C. § 2254. We affirm.
Hurth was convicted of voluntary manslaughter1 after he slew the husband
of a woman with whom he was enamored. After his conviction and sentence were
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
Cal. Penal Code § 192(a).
upheld on direct appeal, he filed petitions for postconviction relief in the California
courts, and when those were denied he filed a petition for habeas corpus in the
district court. He argues that the district court erred when it determined that he
failed to file within the one-year statute of limitations period established by the
Antiterrorism and Effective Death Penalty Act of 1996. See 28 U.S.C. §
2244(d)(1). We disagree.
The statute of limitations began to run on November 12, 2002,2 and his
federal habeas corpus petition was filed on May 3, 2005. The petition was filed
too late unless the statute was tolled by his applications for state postconviction
relief. See § 2254(d)(2); Evans v. Chavis, 546 U.S. 189, 191–92, 126 S. Ct. 846,
848–49, 163 L. Ed. 2d 684 (2006). For purposes of this case, that comes down to a
question of whether he filed his postconviction relief petition with the California
Supreme Court within a reasonable time after his postconviction relief petition to
the California Court of Appeal was denied. See Evans, 546 U.S. at 197–98, 126 S.
2
See Bowen v. Roe, 188 F.3d 1157, 1158–59 (9th Cir. 1999). Hurth
suggests that the period might have started later because he did not discover the
jury taint problem that he now points to until after the period would ordinarily
start. However, he did not raise that issue in the district court or in his petition for
a Certificate of Appealability. It is waived. See White v. Martel, 601 F.3d 882,
885 (9th Cir. 2010). In any event, on this record it is meritless. In fact, he
conceded that he knew of the jury taint issue before his direct appeals became
final.
2
Ct. at 852; Carey v. Saffold, 536 U.S. 214, 222, 122 S. Ct. 2134, 2139, 153 L. Ed.
2d 260 (2002). He did not. A postconviction relief petition should be filed “‘as
promptly as the circumstances allow. . . .’” Walker v. Martin, __U.S. __, __, 131
S. Ct. 1120, 1125, 179 L. Ed. 2d 62 (2011); see also In re Clark, 5 Cal. 4th 750,
765 n.5, 855 P.2d 729, 738 n.5, 21 Cal. Rptr. 2d 509, 518 n.5 (1993). We have
stated that, in general, any delays should not be substantially longer than the thirty-
to-sixty-day time limits that most other states use. See Velasquez v. Kirkland, 639
F.3d 964, 967, 968 (9th Cir. 2011) (finding eighty-one days excessive); Chaffer v.
Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per curiam) (finding 101 days
excessive); see also Evans, 546 U.S. at 199–201, 126 S. Ct. at 853–54.
The court of appeal denied Hurth’s postconviction relief petition on
February 20, 2004. Hurth was represented by the same counsel throughout the
state postconviction proceedings, but he waited seventy days to file a
postconviction petition with the California Supreme Court. That petition was an
essentially verbatim copy of his petition to the court of appeal. The delay is
unexplained, and in the absence of an “adequate explanation”3 we cannot see why
there was “any delay beyond the thirty-to-sixty-day range.”4 Thus, the statute of
limitations was not tolled because the postconviction relief petition was untimely.
3
Velasquez, 639 F.3d at 968.
4
Id.3
See Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S. Ct. 1807, 1814, 161 L. Ed. 2d
669 (2005); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005).5
AFFIRMED.
5
Because Hurth’s habeas corpus petition was untimely, we do not reach the
merits of his claim of jury taint.
4