Robert A. Hebert v. John Marshall

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The parties consented in writing to proceed before a magistrate judge.**
The panel unanimously concludes this case is suitable for decision***
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT A. HEBERT,
Petitioner - Appellant,
v.
JOHN MARSHALL,
Respondent - Appellee.
No. 10-15037
D.C. No. 2:08-cv-02358-GGH
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Gregory G. Hollows, Magistrate Judge, Presiding**
Submitted February 15, 2011***
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
California state prisoner Robert A. Hebert appeals from the district court’s
judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
FILED
FEB 23 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-15037 2
Hebert first contends that he is entitled to statutory tolling for the entire
period that his state habeas petitions were pending, including the intervals between
filings. The unexplained delays of 136 days and 194 days between Hebert’s state
court filings were unreasonable and did not toll the statute of limitations. See
Evans v. Chavis, 546 U.S. 189, 198 (2006); Chaffer v. Prosper, 592 F.3d 1046,
1048 (9th Cir. 2010) (per curiam) (petitioner not entitled to statutory tolling during
unexplained delays of 115 and 101 days between state court petitions).
Herbert next contends that he is entitled to equitable tolling and statutory
tolling, because documents necessary to his petition were allegedly withheld from
him. Hebert does not point to any document that was withheld from him and that
created an “impediment” to his ability to file a timely petition. See 28 U.S.C. §
2244(d)(1)(B); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013-14 (9th Cir.
2009) (petitioner not entitled to equitable tolling where he did not identify specific
instances when he was deprived of a document necessary to his petition).
Finally, Hebert contends that the merits of his petition should be considered
because he is actually innocent. This argument fails because Hebert’s claims go to
the legal sufficiency of the evidence, rather than his factual innocence. See United
States v. Ratigan, 351 F.3d 957, 965 (9th Cir. 2003).
AFFIRMED.

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