John Perez v. Greg Lewis, Warden , 543 F. App'x 710 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 25 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOHN TIMOTHY PEREZ, No. 09-56441
Petitioner - Appellant, D.C. No. 2:07-cv-03597-SVW-
MAN
v.
GREG LEWIS, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted January 10, 2013
Pasadena, California
Before: O’SCANNLAIN and W. FLETCHER, Circuit Judges, and
HELLERSTEIN, Senior District Judge.**
Petitioner John Timothy Perez appeals the district court’s denial of his
petition for habeas corpus, brought pursuant to 28 U.S.C. § 2254. Perez raises two
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
arguments that his petition should not have been dismissed as untimely and we
address each in turn.
Perez is not entitled to an equitable exception to AEDPA’s statute of
limitations, 28 U.S.C. § 2244(d)(1)(D), on the basis of “actual innocence,”
McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013); see also Lee v. Lampert, 653
F.3d 929, 932 (9th Cir. 2011). He has not “demonstrate[d] that it is more likely
than not that no reasonable juror would have found him guilty beyond a reasonable
doubt.” Lee, 653 F.3d at 937.
We will assume, arguendo, that Perez is entitled to delayed accrual of his
claim and that he exercised diligence. He concedes, however, that he is not entitled
to statutory tolling while his petition was pending in the California Supreme Court,
because that court dismissed his petition as untimely. See Pace v. DiGuglielmo,
544 U.S. 408, 410 (2005). Perez is, therefore, not entitled to equitable tolling
sufficient to make his habeas petition timely. See Lakey v. Hickman, 633 F.3d 782,
787 (9th Cir. 2011).
AFFIRMED