Melvin Edwin v. Joseph Schmidt , 406 F. App'x 201 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 17 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MELVIN G. EDWIN, No. 09-35231
Petitioner - Appellant, D.C. No. 3:08-cv-00004-JWS
v.
MEMORANDUM *
JOSEPH SCHMIDT, Commissioner;
ALASKA D.O.C.; FRANK LUNA,
Warden,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted December 9, 2010
Seattle, Washington
Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and MOSKOWITZ,
District Judge.**
Melvin G. Edwin appeals the district court’s dismissal of his federal habeas
corpus claim. The court did not reach the merits of Edwin’s petition; rather, it
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
determined that the petition had not been brought within the one-year period of
limitation required by 28 U.S.C. § 2244(d)(1). We have jurisdiction pursuant to 28
U.S.C. § 2253(a), and we affirm.
The parties are familiar with the facts of the case so we do not repeat them
here. Edwin has failed to demonstrate that he was eligible for either statutory or
equitable tolling. Section 2244(d)(2) requires “a properly filed application” to toll
the limitation period through the pendency of proceedings. See Pace v.
DiGuglielmo, 544 U.S. 408, 414–15 (2005). Edwin has not shown that he properly
filed any application until June 15, 2000—more than three years after the period
applicable to his federal claims began to run.
He also fails to show entitlement to equitable tolling because he has not
satisfactorily shown that he took any action in regard to his claims from August 1,
1996, until October 1999. He then waited more than seven months to actually file
his claim on June 15, 2000. This is inadequate to demonstrate that he had been
pursuing his rights with “reasonable diligence.” Holland v. Florida, 130 S. Ct.
2549, 2555–59, 2565 (2010) (demonstrating facts sufficient to satisfy the
reasonable diligence standard).
The decision of the Alaska Superior Court to exercise its discretion to relax
the filing deadlines to permit Edwin’s otherwise untimely state application did not
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require the district court to conclude that the more restrictive federal standard had
been met. Compare Spitsyn v. Moore, 345 F.3d 796, 802 (9th Cir. 2003) (“[I]f the
person seeking equitable tolling has not exercised reasonable diligence in
attempting to file, after the extraordinary circumstances began, the link of
causation between the extraordinary circumstances and the failure to file is broken
[. . . .]” (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000))), with
White v. State, 514 P.2d 814, 816 (Alaska 1973) (requiring only good cause in
order to permit a court to exercise its discretion to relax time requirements). An
evidentiary hearing is not required when no facts have been properly put at issue.
See Laws v. Lamarque, 351 F.3d 919, 921 (9th Cir. 2003) (“Because Laws has
made a good-faith allegation that would, if true, entitle him to equitable tolling, we
vacate the district court’s denial of the petition and remand for further factual
development of his claim . . . .”).
AFFIRMED.
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