Nichols v. Terhune

U.S. Court of Appeals for the Ninth Circuit January 24, 2001

Nichols v. Terhune, 2 F. App'x 801 (9th Cir. 2001)

Opinion of the Court

MEMORANDUM2

California state prisoner Avin Nichols appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review the district court’s dismissal de novo, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999), and we affirm.

Nichols contends that the district court erred by dismissing his habeas petition as untimely under 28 U.S.C. § 2244(d)(1).3 Because Nichols’ conviction became final in 1990, before the effective date of the AEDPA, he had until April 23, 1997 to file his federal habeas petition.4 See Calderon v. United States District Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. *8021997), overruled on other grounds by Calderon v. United States District Ct. (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc).

Giving Nichols the benefit of all possible tolling periods under 28 U.S.C. § 2244(d)(2), he was required to file his federal habeas petition by December 13, 1997. Therefore, we conclude that his federal petition, which was signed on May 14, 1998 and filed on May 29, 1998, was untimely. See 28 U.S.C. § 2244(d); Nino v. Galaza, 183 F.3d 1003, 1006-07 (9th Cir. 1999), cert. denied, 529 U.S. 1104, 120 S.Ct. 1846, 146 L.Ed.2d 787 (2000).

To the extent that Nichols contends that he is entitled to statutory tolling under 28 U.S.C. § 2244(d)(2) for his 1993 “petition to conform arbitration award” in the California Superior Court, we conclude that this petition, which concerned a dispute over fees between Nichols and his retained trial counsel, was not a “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim.” 28 U.S.C. § 2244(d)(2).5

We therefore conclude that the district court did not err by dismissing the petition as untimely under 28 U.S.C. § 2244(d).

AFFIRMED.

. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

. We reject the State’s contention that this court lacks jurisdiction under 28 U.S.C. § 2253 to consider the timeliness issue. See Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (concluding that a district court’s denial on procedural grounds can be appealable); Lambright v. Stewart, 220 F.3d 1022, 1026-27 (9th Cir. 2000).

. Nichols contends that under section 2244(d)(1)(B), the one-year period did not begin to run until May 28, 1997, which was the date on which the California Supreme Court denied his final habeas petition, because that was the date on which the state impediment *802to filing was removed. We disagree that the exhaustion requirement is an “impediment to filing created by State action.” Cf. O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (concluding that a state prisoner must give state courts one full opportunity to resolve constitutional issues).

. We also reject Nichols’ argument that he is entitled to equitable tolling because he has not demonstrated that extraordinary circumstances beyond his control made it impossible to file a timely petition. See Kelly, 163 F.3d at 541; see also Miles, 187 F.3d at 1107 (petitioner must show that external forces, rather than his own lack of diligence, account for the failure to file a timely claim).

Reference

Full Case Name: Alvin Lawrence NICHOLS v. C.A. TERHUNE, Director Attorney General of the State of California
Status: Published