Hung Vu v. Richard Kirkland

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 06 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HUNG VIET VU, No. 10-16686
Petitioner - Appellant, D.C. No. 2:07-cv-00495-MCE-
GGH
v.
RICHARD KIRKLAND MEMORANDUM*
Respondents - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Submitted October 13, 2011**
San Francisco, California
Before: HUG, KLEINFELD, and W. FLETCHER, Circuit Judges.
The district court did not abuse its discretion in declining to accept
Appellant’s untimely habeas petition nunc pro tunc to a timely date. See Marx v.
*
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).
Loral Corp., 87 F.3d 1049, 1054 (9th Cir. 1996) (applying abuse of discretion
standard to nunc pro tunc order). The district court weighed all relevant
factors—including the fault attributable to Appellant and Appellant’s attorney in
filing the petition beyond the one-year statute of limitations—and concluded that
the totality of factors weigh against accepting the petition nunc pro tunc.
See Martinez v. Court of Appeal, 528 U.S. 152, 162 (2000) (“[T]he trial judge is
under no duty to provide personal instruction on courtroom procedure or to
perform any legal ‘chores’ for the defendant that counsel would normally carry
out.”); cf. Anthony v. Cambra, 236 F.3d 568, 574 n.1 (9th Cir. 2000) (finding
district court acted within its discretion when it corrected its own error by
accepting untimely habeas petition nunc pro tunc). Further, the district court did
not err in concluding that dismissal of the petition would not work a harsh result
because the claims in the untimely petition lacked probable merit. See Martin v.
Henley, 452 F.2d 295, 299 (9th Cir. 1971) (“The power to amend nunc pro tunc is
a limited one, and may be used only where necessary to correct a clear mistake and
prevent injustice.”).
AFFIRMED.
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