Falconer v. Del Papa

MEMORANDUM * Robert Lee Falconer appeals the dismissal of his 28 U.S.C. § 2254 habeas corpus petition. We agree with the district court that the petition is time-barred. We need not reach the question of whether he was entitled to tolling of the statute of limitations when he believed his attorney was pursuing an appeal. The undisputed evidence is that he was informed that his attorney had not filed an appeal on his behalf in February 2002. He did not file his federal habeas petition until March 2004, well after the one year statute of limitations. 28 U.S.C. § 2244 (d)(1). He is not entitled to statutory equitable tolling during the period in which he was pursuing an untimely state habeas petition. Pace v. DiGuglielmo, 544 U.S. 408, 414, 418 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005). His untimeliness in filing the state habeas petition cannot be excused because of his counsel’s alleged ineffectiveness because Falconer could have filed a timely state habeas petition after he was informed that the appeal had not been filed. However, he did not. Absent application of equitable tolling, Falconer’s federal petition is time-barred. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.