Samuel Saldana v. Ron Barns

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMUEL SALDANA,
Petitioner - Appellant,
v.
RON BARNS,
Respondent - Appellee.
No. 12-17157
D.C. No. 3:11-cv-04716-CRB
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, Senior District Judge, Presiding
Submitted March 10, 2015**
San Francisco California
Before: McKEOWN, MURGUIA, and FRIEDLAND, Circuit Judges.
Petitioner/Appellant Samuel Saldaña was convicted of robbery and
carjacking in California’s Santa Clara County. Saldaña filed a timely petition for
writ of habeas corpus in the Northern District of California. The district court
FILED
MAR 13 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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denied the petition because Saldaña had failed to exhaust his claims. Saldaña then
litigated his claims to completion in state court and returned to district court with a
new petition well after the one-year statute of limitations had elapsed. See 28
U.S.C. § 2244(d)(1)(A). The district court dismissed Saldaña’s second petition as
untimely. Saldaña now argues that he is entitled to equitable tolling.
Saldaña argues that the district court was required to inform him that he
could stay and abey his first petition while he litigated his claims in state court
before dismissing the petition as unexhausted. Saldaña waived this argument by
failing to raise it in the district court in the action on his second petition. See Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Instead, Saldaña argued before the
district court that his second petition’s untimeliness should be excused because
Saldaña is actually innocent. Accordingly, he failed to raise the issue “‘sufficiently
for the trial court to rule on it.’” See Butler v. Long, 752 F.3d 1177, 1180 (9th Cir.
2014) (quoting Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033, 1037 (9th Cir.
2006)). Even if the issue was not waived, it is settled that district courts in this
Circuit do not have a duty to inform habeas petitioners of the stay and abey
procedure. See Robbins v. Carey, 481 F.3d 1143, 1148–49 (9th Cir. 2007).
AFFIRMED.
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