Jose Mendoza v. M. McDonald , 458 F. App'x 686 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE SANTOS MENDOZA, No. 08-17225
Petitioner - Appellant, D.C. No. 2:07-cv-01757-GEB-
GGH
v.
M. D. MCDONALD, Chief Deputy MEMORANDUM*
Warden and ATTORNEY GENERAL OF
THE STATE OF CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted November 16, 2011**
San Francisco, California
Before: NOONAN and BEA, Circuit Judges, and WALTER, Senior District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Donald E. Walter, Senior District Judge for the U.S.
District Court for Western Louisiana, sitting by designation.
Jose Santos Mendoza appeals the district court’s dismissal of his 28 U.S.C. §
2254 petition for untimeliness. He argues for both statutory and equitable tolling of
the one-year statute of limitations imposed by the Antiterrorism and Effective
Death Penalty Act. See 28 U.S.C. § 2244(d).
Mendoza is not entitled to statutory tolling because there were such long
periods of unexplained delay between his state habeas filings that they cannot be
excused from the year-long limitations period. See Chaffer v. Prosper, 592 F.3d
1046, 1048 (9th Cir. 2010).
Mendoza also is not entitled to equitable tolling because he does not provide
specific allegations showing that he made diligent efforts to pursue his federal
petition during the period between December 13, 2006, the date the California
Supreme Court denied his state habeas petition, and August 28, 2007, the date he
filed the federal habeas petition. See Roy v. Lampert, 465 F.3d 964, 969 (9th Cir.
2006). Mendoza does not explain how he was able to prepare several state filings,
despite the language barrier and other impediments, but had inadequate access to
legal materials to prepare his federal petition.
We therefore hold that Mendoza is not entitled to statutory or equitable
tolling to render his petition timely. The district court’s dismissal of Mendoza’s
petition for untimeliness is AFFIRMED.
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