Jerry Pena v. Michael Martel

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY PENA,
Petitioner - Appellant,
v.
MICHAEL MARTEL; CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION; A.
HEDGPETH; KERN VALLEY STATE
PRISON,
Respondents - Appellees.
No. 10-16133
D.C. No. 2:08-cv-01740-LKK-
CMK
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Argued and Submitted September 1, 2011
San Francisco, California
FILED
SEP 27 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The Honorable Richard Mills, Senior United States District Judge for the
Central District of Illinois, sitting by designation.
2
Before: FISHER and RAWLINSON, Circuit Judges, and MILLS, District Judge. **
Jerry Pena appeals the judgment of the district court dismissing his 28
U.S.C. § 2254 habeas petition as untimely. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
We assume that Pena’s third state habeas petition was filed in the California
Supreme Court on December 12, 2007, in accordance with the prison mailbox rule.
That date is consistent with the proof of service, the legal mail log and the position
taken by the state in the district court.
We nonetheless conclude that Pena is not entitled to statutory tolling for the
interval between the California Court of Appeal’s denial of his second habeas
petition and his filing of the third petition in the state supreme court. See 28
U.S.C. § 2244(d)(2). Pena’s filing delay was “substantially longer than the ‘30 to
60 days’ that ‘most States’ allow for filing petitions.” Chaffer v. Prosper, 592 F.3d
1046, 1048 (9th Cir. 2010) (per curiam) (quoting Evans v. Chavis, 546 U.S. 189,
201 (2006)); see also Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011)
(holding that an 81-day delay was “far longer than the Supreme Court’s
thirty-to-sixty-day benchmark for California’s ‘reasonable time’ requirement”).

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Pena was therefore required to offer an adequate explanation for his delay, but he
has not done so. See Velasquez, 639 F.3d at 968; Chaffer, 592 F.3d at 1048.
Although Pena added a table of contents and a table of authorities to his petition,
he does not explain why he could not have accomplished those quite minor
modifications within a reasonable time. His federal petition was therefore
untimely filed. See 28 U.S.C. § 2244(d)(1).
AFFIRMED.

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