Dewey Lee McBride v. CHARLES L. RYAN, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEWEY LEE MCBRIDE,
Petitioner-Appellant,
v.
CHARLES L. RYAN, Warden,
Respondent-Appellee.
No. 17-15344
D.C. No. 4:16-cv-00485-CKJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted October 19, 2018**
San Francisco, California
Before: HAWKINS and HURWITZ, Circuit Judges, and EATON,*** Judge.
Dewey McBride, an Arizona state prisoner, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely. We granted a
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.
FILED
OCT 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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certificate of appealability (“COA”) limited to the timeliness issue, and McBride
timely appealed. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and
affirm.
1. McBride’s § 2254 petition was filed on July 21, 2016, and was subject to
the one-year statute of limitations in 28 U.S.C. § 2244(d)(1)(A), which ran from “the
date on which the [state court] judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.” The Arizona Supreme
Court denied McBride’s petition for review of the denial of his second petition for
post-conviction relief (“PCR”) on April 21, 2015. That denial became final ninety
days later. See McMonagle v. Meyer, 802 F.3d 1093, 1096 (9th Cir. 2015). Thus,
even assuming, as McBride contends, that the limitations period ran from the date
the judgment on his second PCR petition became final, it expired on July 20, 2016,
one day before he filed his § 2254 habeas petition.
2. McBride argues that the statute of limitations should have been tolled while
his petition for a writ of certiorari concerning the Arizona Supreme Court’s April 21
order was pending before the Supreme Court of the United States. That argument,
however, has been expressly rejected by the Supreme Court. See Lawrence v.
Florida, 549 U.S. 327, 332 (2007).
3. Given our conclusion that the petition was untimely, we have no occasion
to address the uncertified issue raised in McBride’s brief. 28 U.S.C. § 2253(c)(2).

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AFFIRMED.

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