Edward Ontiveros v. R. J. Subia

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NOT FOR PUBLICATION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
EDWARD ONTIVEROS,
Petitioner - Appellant,
v.
R. J. SUBIA,
Respondent - Appellee.
No. 08-17317
D.C. No. 2:07-cv-01441-JAM-
DAD
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted January 15, 2010
San Francisco, California
Before: NOONAN, HAWKINS and M. SMITH, Circuit Judges.
Edward Ontiveros, a California state prisoner, sought federal habeas relief to
challenge the parole board’s decision to deny him parole. The district court
dismissed the case, finding that the one-year deadline for filing under the
Antiterrorism and Effective Death Penalty Act (AEDPA) had passed. See 28
FILED
JAN 28 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Ontiveros’s statutory tolling claims are not waived. See Laws v.1
Lamarque, 351 F.3d 919, 924 (9th Cir. 2003) (holding that pro se petitions must be
construed liberally); Bolker v. Comm’r of Internal Revenue, 760 F.2d 1039, 1042
(9th Cir. 1985) (discussing exceptions to waiver rule for issues that are purely legal
or that arise while appeal is pending). However, his equitable tolling claim is
waived for failure to raise it in his opening brief. See Fed. R. App. P. 28 (a)(9)(A);
see also Ind. Towers of Wash. v. Washington, 350 F.3d 925, 929-30 (9th Cir.
2003).
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U.S.C. § 2244(d)(1). Ontiveros claims that his petition was filed within the one-
year deadline because (1) the factual predicate date should not begin until after the
30-day period for gubernatorial review has elapsed, and (2) his claim was
“pending,” and thus tolled, see § 2244(d)(2), for the period between the factual
predicate date and his initial state filing. This court has jurisdiction under 28
U.S.C. §§ 1291, 2253. As the facts and procedural history are familiar to the
parties, we do not recite them here except as necessary to explain our decision.
We affirm the district court’s grant of the motion to dismiss.1
I. Factual Predicate Date
The district court found that Ontiveros filed his petition 113 days after the
one-year limitations period had ended. Thus, even assuming that the factual
predicate date was defined as starting after the 30-day period for gubernatorial
review had elapsed, Ontivoros’s claim would still be untimely (by 83 days). We
therefore decline to reach this issue.

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II. Tolling During the Pre-Filing Period
Ontiveros argues that his claim was “pending,” for tolling purposes, see §
2244(d)(2), during the period between the board’s final decision and Ontiveros’s
initial habeas filing in state superior court (the pre-filing period). This pre-filing
period was 329 days long. If the statute of limitations had been tolled during this
period, Ontiveros’s federal habeas petition would have been timely under AEPDA.
AEDPA provides for tolling while a prisoner attempts to exhaust his claims
in state court, stating: “The time during which a properly filed application for
State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of limitation
under this subsection.” § 2244(d)(2). Ontiveros presents cogent arguments for why
tolling during the pre-filing period might be fair, especially in the context of parole
decision challenges. However, we find that the plain language of § 2244(d)(2)
does not permit tolling during the pre-filing period, as it requires that the state
petition be both “properly filed” and “pending.” Although Ontiveros’s state
petition was eventually properly filed and pending, it could not be characterized as
such during the pre-filing period.
Furthermore, we have previously only permitted tolling “from the time the
first state habeas petition is filed until the California Supreme Court rejects the

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petitioner’s final collateral challenge.” Nino v. Galaza, 183 F.3d 1003, 1006 (9th
Cir. 1999) (footnote omitted); see also Redd v. McGrath, 343 F.3d 1077, 1084-85
(9th Cir. 2003) (holding that the limitations period begins to run on the day after
the board’s parole decision becomes final). We reject Ontiveros’s argument that In
re Burdan, 86 Cal. Rptr. 3d 549 (Ct. App. 2008), read in conjunction with Evans v.
Chavis, 546 U.S. 189, 193 (2006), justifies tolling during the pre-filing period
simply because his initial state petition was timely by California standards.
Although “the timeliness of a petition for post-conviction relief filed in state court
is governed by state law[,] . . . the circumstances under which a state petition will
be deemed ‘pending’ for purposes of 28 U.S.C. § 2244(d)(2) is a federal question.”
Welch v. Carey, 350 F.3d 1079, 1080 (9th Cir. 2003) (en banc). We hold that
Ontiveros was not entitled to statutory tolling during the pre-filing period and that
his federal habeas petition is time-barred under AEDPA.
AFFIRMED.

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