Mark Chin v. RICK HILL, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK CHIN,
Petitioner - Appellant,
v.
RICK HILL, Warden,
Respondent - Appellee.
No. 11-18011
D.C. No. 2:10-cv-03258-GEB-
DAD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Submitted December 4, 2013**
San Francisco, California
Before: TROTT, THOMAS, and MURGUIA, Circuit Judges.
Mark Chin appeals from the district court’s dismissal of his petition for a
writ of habeas corpus, which the district court determined was time-barred under
FILED
DEC 10 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 1 of 3 --

the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C.
§ 2244(d). We affirm.
For the first time on appeal, Chin asserts that the state corrections
department’s denial of his administrative appeal, which formed the basis of his
habeas petition, was a “judgment” subject to direct review by the U.S. Supreme
Court, § 2244(d)(1)(A), rather than “the factual predicate of [his] claim,” §
2244(d)(1)(D). He argues that, because his petition is governed by §
2244(d)(1)(A), he was entitled to take advantage of that sub-section’s provision
that AEDPA’s one-year limitation period does not begin to run until “the
expiration of the time for seeking [direct] review.” Consequently, Chin asserts, the
limitation period only began to run 90 days after his administrative appeal was
denied – once the deadline to petition for a writ of certiorari had passed.
Chin had conceded before the district court that the limitations period began
to run when the denial of his administrative appeal was issued, and he was right.
“[W]hen a habeas petitioner challenges an administrative decision affecting the
‘fact or duration of his confinement,’ AEDPA’s one-year statute of limitations runs
from when the ‘factual predicate’ of the habeas claims ‘could have been discovered
through the exercise of due diligence.’ As a general rule, the state agency’s denial
of an administrative appeal is the ‘factual predicate’ for such habeas claims.”
2

-- 2 of 3 --

Mardesich v. Cate, 668 F.3d 1164, 1172 (9th Cir. 2012) (internal citations omitted)
(quoting § 2244(d)(1)(D)).
AFFIRMED.
3

-- 3 of 3 --