Jerry Hamilton v. Maurice Junious ( 2012 )

FILED
UNITED STATES COURT OF APPEALS AUG 29 2012
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
JERRY FRED HAMILTON, No. 09-17600
Petitioner - Appellant, D.C. No. 2:09-CV-01411-MCE-
CMK
v. Eastern District of California,
Sacramento
MAURICE JUNIOUS,
Respondent - Appellee. ORDER AMENDING
MEMORANDUM DISPOSITION
AND DENYING PETITION FOR
REHEARING EN BANC
Before: D.W. NELSON, RAWLINSON, and IKUTA, Circuit Judges.
The Memorandum Disposition filed on June 15, 2012, is AMENDED as
follows:
On page 2 of the Memorandum Disposition, the word “summary,” which
modified the California Court of Appeal’s dismissal of Hamilton’s petition, is
deleted. The modified sentenced now reads: “The California Court of Appeal’s
dismissal of the petition with citations to In re Steele, 32 Cal. 4th 682, 692 (2004)
and In re Steele, 32 Cal. 4th 682, 692 (2004) and In re Hillery, 202 Cal. App. 2d.
293 (1962) did not undo the superior court’s determination that Hamilton’s petition
was untimely.
An amended Memorandum Disposition will be filed simultaneously with
this order.
Judge Rawlinson and Judge Ikuta voted to deny the petition for rehearing en
banc. Judge Nelson recommended denial of the petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc, and no
active judge has requested a vote on whether to rehear the matter en banc. Fed. R.
App. P. 35.
The petition for rehearing en banc is DENIED. No further petitions for
rehearing and/or rehearing en banc will be entertained.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 29 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JERRY FRED HAMILTON, No. 09-17600
Petitioner - Appellant, D.C. No. 2:09-CV-01411-MCE-
CMK
v.
MAURICE JUNIOUS, AMENDED MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Submitted June 12, 2012**
San Francisco, California
Before: D.W. NELSON, RAWLINSON, and IKUTA, Circuit Judges.
Petitioner Jerry Fred Hamilton appeals the summary dismissal of his habeas
petition as untimely and the denial of his motion for stay and abeyance as moot.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 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).
Hamilton’s petition is untimely. The Anti-Terrorism and Effective Death
Penalty Act (AEDPA) governs this petition. Woodford v. Garceau, 538 U.S. 202,
210 (2003). AEDPA’s one-year statute of limitations expired on April 21, 2009.
28 U.S.C. § 2244(d)(1)(A). Hamilton did not file his petition until May 19, 2009.
Statutory tolling does not apply. The superior court denied Hamilton’s
March 9, 2009, petition as untimely and on the merits. An untimely petition is not
properly filed and, therefore, cannot toll AEDPA’s limitations period. Pace v.
DiGuglielmo, 544 U.S. 408, 417 (2005). The California Court of Appeal’s
dismissal of the petition with citations to In re Steele, 32 Cal. 4th 682, 692 (2004)
and In re Hillery, 202 Cal. App. 2d. 293 (1962), did not undo the superior court’s
determination that Hamilton’s petition was untimely. Nor do Ylst v. Nunnemaker,
501 U.S. 797 (1991), Campbell v. Henry, 614 F.3d 1056 (9th Cir. 2010), or
Trigueros v. Adams, 658 F.3d 983 (9th Cir. 2011) apply to save the petition from
the timeliness bar.
Because the petition is untimely, the district court did not err in denying
Hamilton’s motion for stay and abeyance as moot.
Finally, we construe Hamilton’s briefing on the uncertified issue that we
should deem the claim exhausted and remand for consideration on the merits as a
motion to expand the certificate of appealability. Schardt v. Payne, 414 F.3d 1025,
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1032 (9th Cir. 2005) (discussing 9th Cir. R. 22-1(e)). Hamilton has failed to make
“a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Nor has he “‘demonstrate[d] that the issues are debatable among
jurists of reason; that a court could resolve the issues [in a different manner]; or
that the questions are adequate to deserve encouragement to proceed further.’”
Doe v. Woodford, 508 F.3d 563, 567 (9th Cir. 2007) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 n.4 (1983)). Accordingly, we dismiss Hamilton’s uncertified
issue for lack of jurisdiction. Id. at 569.
AFFIRMED.
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