Samuel Bonner v. Terri Gonzalez , 526 F. App'x 759 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SAMUEL QUINTON BONNER, No. 10-55237
Petitioner - Appellant, D.C. No. 8:99-cv-00091-DOC-
MAN
v.
TERRI GONZALEZ, Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted May 6, 2013
Pasadena, California
Before: PAEZ and IKUTA, Circuit Judges, and SEEBORG, District Judge.**
Samuel Quinton Bonner appeals the district court’s order dismissing his
petition for a writ of habeas corpus. The district court dismissed his petition as
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Seeborg, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
untimely under 28 U.S.C. § 2244(d) after holding that he was not entitled to
equitable tolling. We affirm.
Because Bonner had until April 24, 1997 to file a federal habeas petition
under § 2244(d), but filed his petition on September 24, 1998, his petition is
untimely unless it is tolled pursuant to § 2244(d)(2) (tolling the one-year
limitations period for the time in which a properly filed application for post-
conviction relief is pending in state court), or under the equitable tolling doctrine.
We have previously determined that Bonner is not entitled to statutory tolling.
Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005). Today, we hold that he is
not entitled to equitable tolling because he has not pursued his rights with
reasonable diligence. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (holding
that a petitioner is entitled to equitable tolling “only if he shows (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” (internal quotation marks omitted)).
Among other delays, Bonner waited to file his first state habeas petition for
nearly five years after the California Supreme Court denied his petition for direct
review in 1985. He also waited twenty-nine months after the California Supreme
Court denied his state habeas petition on August 28, 1991, before filing his first
federal habeas petition. Although these delays occurred before AEDPA’s
2
enactment, “[h]ad petitioner advanced his claims within a reasonable time of their
availability, he would not now be facing any time problem.” Pace v. DiGuglielmo,
544 U.S. 408, 419 (2005). His failure to do so constituted a lack of reasonable
diligence. See id.
Moreover, Bonner displayed a lack of diligence in seeking (1) “to exhaust
the claims dismissed as unexhausted” by the district court, and (2) in “return[ing]
to federal court after doing so.” See Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir.
2003) (stating that these two factors were “the relevant measure of diligence”). For
example, Bonner waited seventeen months after the district court dismissed his
first federal habeas petition for having unexhausted claims before returning to state
court in August of 1995.1 This seventeen-month gap is more than double the time
it took the petitioner in Guillory to return to state court, and there we held that
petitioner was not reasonably diligent. Id. at 1018. Bonner also failed to quickly
return to federal court after exhausting his state claims; he delayed approximately
four months, from May 27, 1998 to September 24, 1998, between the date that the
California Supreme Court denied his second state habeas petition and the date he
1
The district court’s error in dismissing Bonner’s first federal habeas petition
without advising him that he could strike the unexhausted claims from his petition
and proceed on the exhausted claims does not excuse his delay; in such
circumstances, a petitioner must still proceed with reasonable diligence in order to
merit equitable tolling. Guillory, 329 F.3d at 1017–18.
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refiled his federal habeas petition. This delay was far greater than the thirty days
that we previously indicated “is sufficient time for a petitioner to return to federal
court following final action by the state courts.” Guillory, 329 F.3d at 1018 n.1
(quoting Kelly v. Small, 315 F.3d 1063, 1071 (9th Cir. 2003)).
AFFIRMED.
4