Luis Rios v. Patrick Covello

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS RIOS,
Petitioner-Appellant,
v.
PATRICK COVELLO,
Respondent-Appellee.
No. 22-55140
D.C. No.
2:20-cv-11678-CJC-MAR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted July 12, 2023**
Pasadena, California
Before: SANCHEZ and MENDOZA, Circuit Judges, and DONATO,*** District
Judge.
Luis Rios, a California state prisoner, appeals from the district court’s
judgment dismissing his petition for a writ of habeas corpus on the ground that it
* 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).
*** The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
FILED
JUL 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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was untimely pursuant to the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U.S.C. § 2244(d)(1). We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253, and we affirm.
The district court certified one issue for appeal: whether Rios’s Section
2254 petition was untimely under AEDPA’s one-year limitations period. As
relevant here, the one-year period runs from the later of “the date on which the
judgment became final by the conclusion of direct review or the expiration of the
time for seeking such review,” or “the date on which the factual predicate of the
claim or claims presented could have been discovered through the exercise of due
diligence.” 28 U.S.C. § 2244(d)(1)(A), (D). Rios’s conviction became final in
May 2014. His petition was not filed until December 2020. Consequently, Rios’s
petition was untimely as measured against the date his judgment became final.
Rios contends that he is entitled to a later triggering date of January 2020
under Section 2244(d)(1)(D), because that is when a paralegal’s review of the case
file confirmed Rios’s “suspicions” that the prosecutor in his Los Angeles case used
a photograph of an unrelated firearm from his San Bernardino case to coerce him
into accepting a plea deal. But in the district court proceedings, Rios indicated
that, prior to entering his plea, he “knew the alleged weapon in the [Los Angeles]
case was never recovered,” and was shown a photograph of a firearm that he knew
“was that similar to a .380 [caliber], but was not the 9mm used at the [Los

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Angeles] address he was being charged with.” Rios asked his lawyer to move to
suppress the firearm evidence, and then “fired” his lawyer when no motion was
filed. Consequently, Rios was aware of the factual predicate for his claims and
could have asserted them “in objective good faith,” Hasan v. Galaza, 254 F.3d
1150, 1154 (9th Cir. 2001), well within the AEDPA limitations period.
Rios asks to expand the scope of the certificate of appealability for the
question of whether his Section 2254 petition is timely through equitable tolling.
We deny Rios’s request for the same reasons discussed above, namely that he
could have sought relief in a timely manner without access to the additional
evidence in his case file. See Smith v. Davis, 953 F.3d 582, 588 (9th Cir. 2020) (en
banc) (“A petitioner seeking equitable tolling bears the burden of establishing two
elements: ‘“(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way” and prevented timely filing.’”)
(quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). Rios has not
demonstrated “that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
AFFIRMED.

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