`
`UNITED STATES COURT OF APPEALS
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`FOR THE NINTH CIRCUIT
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`
`FILED
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`
`JUL 17 2023
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
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`
`
`
`No. 22-55140
`
`
`D.C. No.
`2:20-cv-11678-CJC-MAR
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`
`
`MEMORANDUM*
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`
`
`
`
`
`
` Petitioner-Appellant,
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`LUIS RIOS,
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`
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` v.
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`PATRICK COVELLO,
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`
`
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` Respondent-Appellee.
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`
`
`Appeal from the United States District Court
`for the Central District of California
`Cormac J. Carney, District Judge, Presiding
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`Submitted July 12, 2023**
`Pasadena, California
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`Before: SANCHEZ and MENDOZA, Circuit Judges, and DONATO,*** District
`Judge.
`
`
`Luis Rios, a California state prisoner, appeals from the district court’s
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`judgment dismissing his petition for a writ of habeas corpus on the ground that it
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`
`*
` This disposition is not appropriate for publication and is not precedent
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`except as provided by Ninth Circuit Rule 36-3.
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`** The panel unanimously concludes this case is suitable for decision
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`without oral argument. See Fed. R. App. P. 34(a)(2).
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`*** The Honorable James Donato, United States District Judge for the
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`Northern District of California, sitting by designation.
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`
`
`
`
`
`
`
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`was untimely pursuant to the Antiterrorism and Effective Death Penalty Act of
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`1996 (AEDPA), 28 U.S.C. § 2244(d)(1). We have jurisdiction under 28 U.S.C.
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`§§ 1291 and 2253, and we affirm.
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`The district court certified one issue for appeal: whether Rios’s Section
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`2254 petition was untimely under AEDPA’s one-year limitations period. As
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`relevant here, the one-year period runs from the later of “the date on which the
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`judgment became final by the conclusion of direct review or the expiration of the
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`time for seeking such review,” or “the date on which the factual predicate of the
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`claim or claims presented could have been discovered through the exercise of due
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`diligence.” 28 U.S.C. § 2244(d)(1)(A), (D). Rios’s conviction became final in
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`May 2014. His petition was not filed until December 2020. Consequently, Rios’s
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`petition was untimely as measured against the date his judgment became final.
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`Rios contends that he is entitled to a later triggering date of January 2020
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`under Section 2244(d)(1)(D), because that is when a paralegal’s review of the case
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`file confirmed Rios’s “suspicions” that the prosecutor in his Los Angeles case used
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`a photograph of an unrelated firearm from his San Bernardino case to coerce him
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`into accepting a plea deal. But in the district court proceedings, Rios indicated
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`that, prior to entering his plea, he “knew the alleged weapon in the [Los Angeles]
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`case was never recovered,” and was shown a photograph of a firearm that he knew
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`“was that similar to a .380 [caliber], but was not the 9mm used at the [Los
`
`
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`2
`
`
`
`
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`Angeles] address he was being charged with.” Rios asked his lawyer to move to
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`suppress the firearm evidence, and then “fired” his lawyer when no motion was
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`filed. Consequently, Rios was aware of the factual predicate for his claims and
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`could have asserted them “in objective good faith,” Hasan v. Galaza, 254 F.3d
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`1150, 1154 (9th Cir. 2001), well within the AEDPA limitations period.
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`Rios asks to expand the scope of the certificate of appealability for the
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`question of whether his Section 2254 petition is timely through equitable tolling.
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`We deny Rios’s request for the same reasons discussed above, namely that he
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`could have sought relief in a timely manner without access to the additional
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`evidence in his case file. See Smith v. Davis, 953 F.3d 582, 588 (9th Cir. 2020) (en
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`banc) (“A petitioner seeking equitable tolling bears the burden of establishing two
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`elements: ‘“(1) that he has been pursuing his rights diligently, and (2) that some
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`extraordinary circumstance stood in his way” and prevented timely filing.’”)
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`(quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). Rios has not
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`demonstrated “that jurists of reason would find it debatable whether the petition
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`states a valid claim of the denial of a constitutional right and that jurists of reason
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`would find it debatable whether the district court was correct in its procedural
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`ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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`AFFIRMED.
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`
`
`3
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