David Edwards v. Gary Swarthout , 671 F. App'x 625 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 20 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID E. EDWARDS, No. 15-17442
Petitioner-Appellant, D.C. No.
2:13-cv-01651-WBS-EFB
v.
GARY SWARTHOUT, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted December 15, 2016**
San Francisco, California
Before: KOZINSKI, BYBEE, and N.R. SMITH, Circuit Judges.
David Edwards appeals the judgment of the district court denying his 28
U.S.C. § 2254 petition for a writ of habeas corpus. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. Edwards failed to properly exhaust his federal due process claim
pursuant to 28 U.S.C. § 2254(b)(1)(A), because he did not give the California state
courts “a ‘fair opportunity’ to act on his federal due process claim before
presenting it to the federal courts.” Castillo v. McFadden, 399 F.3d 993, 998 (9th
Cir. 2004) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)).
Edwards did not apprise the state court that he was making a claim under the
United States Constitution. Id. at 998-99. He neither described the “federal [due
process] theory on which his claim [was] based,” nor characterized his claim
specifically as a federal claim. Id. at 999.
2. Even if Edwards had exhausted his claim, the district court properly
dismissed his habeas petition as untimely. Under the applicable limitations period,
Edwards had one year to file his state habeas claim beginning on “the date on
which the factual predicate of [his] claim . . . could have been discovered through
the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D); see Mardesich v. Cate,
668 F.3d 1164, 1172 (9th Cir. 2012) (concluding that the applicable trigger date
under § 2244(d)(1) for cases involving an administrative decision is derived from
subsection (D)).
The factual predicate of Edwards’s claim was the administrative decision,
which he admits he discovered on February 20, 2005. Because Edwards did not file
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for administrative review of that decision until December 9, 2011, nor did he file
for state habeas review until April 25, 2012, his petition was untimely.
AFFIRMED.
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