Travis Easter v. Jeri Taylor , 714 F. App'x 791 ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRAVIS MICHAEL EASTER, No. 16-35814
Petitioner-Appellant, D.C. No. 2:14-cv-00999-HZ
v.
MEMORANDUM*
JERI TAYLOR,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted March 9, 2018**
Portland, Oregon
Before: N.R. SMITH, CHRISTEN, and HURWITZ, Circuit Judges.
Travis Easter, an Oregon state prisoner, appeals the district court’s dismissal
of his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28
U.S.C. §§ 1291 and 2253, and affirm.
1. The district court correctly held that the petition was untimely under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
one-year period of limitation in 28 U.S.C. § 2244(d). Easter’s Oregon conviction
became final in October 2006, and the § 2254 petition was not filed until June 2014.
Easter argues that the statute was not triggered until he learned in 2013 that one of
his prior convictions might not qualify as a predicate under Or. Rev. Stat. § 137.719pursuant to Gordon v. Hall, 221 P.3d 763 (Or. Ct. App. 2009). But, 28 U.S.C. §
2244(d)(1)(D) tolls the one-year statute until a petitioner exercising due diligence
could have discovered the “factual predicate” of a claim, and “a state-court decision
establishing an abstract proposition of law arguably helpful to the petitioner’s claim
does not constitute the ‘factual predicate’ for that claim.” Shannon v. Newland, 410
F.3d 1083, 1089 (9th Cir. 2005). Moreover, Easter does not explain why he was
unable, in the exercise of due diligence, to learn of the Oregon decision until 2013.
2. Easter also argues that he is entitled to equitable tolling because his trial
counsel failed to argue that the 1989 conviction was not a predicate under § 137.719,
and allowed him to accept a plea agreement that waived the right to attack the
conviction and sentence. But, counsel’s alleged failings did not “make it impossible
to file a petition on time,” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010)
(citation omitted), nor does it amount to attorney abandonment or egregious
professional misconduct, see Maples v. Thomas, 565 U.S. 266, 270–71 (2012); Luna
2
v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015).1
3. The district court did not err in finding that Easter’s claim of “actual
innocence” cannot excuse the untimely filing. See McQuiggin v. Perkins, 569 U.S.
383, 386–87 (2013). Easter does not assert that he is innocent of the underlying
criminal conduct to which he pleaded guilty, just that his sentence is improper under
state law.
4. The district court did not err in holding that Easter had not established that
an ineffective state post-conviction relief process excused the delay in filing the
federal habeas petition. The period of limitation had already run before Easter filed
for relief in state court, and he waited two years after state proceedings concluded
before filing the federal petition. See 28 U.S.C. § 2244(d).
AFFIRMED.
1
Easter also argues that the state prosecutor “impeded” his ability to bring the
habeas petition by asserting that the 1989 conviction was a predicate under Or. Rev.
Stat. § 137.719, “erroneously or vindictively” bringing charges against him, and
demanding an appeal waiver as a condition of the plea. But, none of these alleged
actions made it impossible for Easter to file the habeas petition timely. See Bills,
628 F.3d at 1097.
3