Barnes v. Campbell , 373 F. App'x 676 ( 2010 )

FILED
NOT FOR PUBLICATION APR 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FLOYD EUGENE BARNES, No. 07-56665
Petitioner - Appellant, D.C. No. CV-06-01849-BTM
v.
MEMORANDUM *
R. CAMPBELL,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
California state prisoner Floyd Eugene Barnes appeals pro se from the
district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We
have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
*
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).
SM S/Research
The district court did not err when it dismissed Barnes’ habeas petition as
untimely. See 28 U.S.C. § 2244(d)(1). Barnes’ state habeas petition filed in the
San Diego Superior Court did not toll AEDPA’s limitations period because it was
not properly filed. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (“Because
the state court rejected petitioner’s [postconviction] petition as untimely, it was not
‘properly filed,’ and he is not entitled to statutory tolling under § 2244(d)(2).”);
Bonner v. Carey, 425 F.3d 1145, 1148-49 (9th Cir. 2005) (applying Pace to
California’s timeliness rule for postconviction petitions), as amended, 439 F.3d
993 (9th Cir. 2006). Barnes’ contention that application of Pace to this case
violates the constitution’s Ex Post Facto clause is without merit. See Allen v.
Siebert, 552 U.S. 3 (2007) (per curiam) (applying Pace to a habeas petition filed
before Pace was decided).
Barnes contends the district court erred because it failed to determine
whether California’s timeliness rule is “adequate.” A state’s timeliness rule is a
“condition to filing” and not a “procedural bar.” Pace, 544 U.S. at 417. Therefore,
“whether a condition to filing is firmly established and regularly followed is
irrelevant.” See Zepeda v. Walker, 581 F.3d 1013, 1018 (9th Cir. 2009).
AFFIRMED.
SMS/Research 2 07-56665