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 2020-07

Rogelio Ruiz v. David Baughman ( 2020 )


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  •                            NOT FOR PUBLICATION                            FILED
UNITED STATES COURT OF APPEALS                         JUL 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGELIO MAY RUIZ,                                No.   19-15439
Petitioner-Appellant,            D.C. No. 3:17-cv-00338-CRB
v.
MEMORANDUM*
DAVID BAUGHMAN, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted February 12, 2020**
San Francisco, California
Before: GOULD and MURGUIA, Circuit Judges, and FEINERMAN,*** District
Judge.
Rogelio Ruiz appeals the district court’s dismissal of his 28 U.S.C. § 2254
habeas corpus petition for failure to comply with the statute of limitations, 28
*
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).
***
The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
U.S.C. § 2244(d). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and
we affirm.
We review de novo the district court’s decision to dismiss a § 2254 habeas
petition as untimely. See Nedds v. Calderon,
    678 F.3d 777
    , 780 (9th Cir. 2012).
Ruiz invokes equitable tolling to avoid dismissal on limitations grounds. To
successfully invoke equitable tolling, Ruiz must show “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way and prevented timely filing.” Holland v. Florida,
    560 U.S. 631
    , 649
(2010) (quoting Pace v. DiGuglielmo,
    544 U.S. 408
    , 418 (2005)). Moreover,
because § 2244(d) “does not permit the reinitiation of [a] [statute of] limitations
period that has ended,” Ferguson v. Palmateer,
    321 F.3d 820
    , 823 (9th Cir. 2003),
Ruiz must have qualified for at least some equitable tolling before his limitations
period was set to expire on September 18, 2008—and tolling must have accrued,
without ever expiring before a tolled deadline, for a total of 3,018 days.
For the reasons set forth in the district court’s thorough opinion, see Ruiz v.
Baughman, Case No. 3:17-cv-00338-CRB,
    2019 WL 978767
    , at *2–8 (N.D. Cal.
Feb. 28, 2019), Ruiz’s equitable tolling argument fails. Moreover, contrary to
Ruiz’s post-argument submission, our recent decision in Milam v. Harrington,
    953 F.3d 1128 
    (9th Cir. 2020), does not warrant a remand for the district court to
consider whether his mental impairment was the “but-for” cause of his untimely
2
petition. Unlike in Milam, where the district court “never addressed either whether
[the petitioner] was actually impaired or . . . whether that impairment caused the
untimely federal filing,”
    id. at 1133, 
    the district court here fully considered Ruiz’s
mental impairment argument and correctly found it wanting. See Ruiz,
    2019 WL 978767
    , at *6–7.
AFFIRMED.
3