John Edward Szabo v. CHARLES L. RYAN and ATTORNEY GENERAL OF THE STATE OF ARIZONA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN EDWARD SZABO,
Petitioner - Appellant,
v.
CHARLES L. RYAN and ATTORNEY
GENERAL OF THE STATE OF
ARIZONA,
Respondents - Appellees.
No. 11-17586
D.C. No. 2:10-cv-02608-GMS
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted April 7, 2014
San Francisco, California
Before: KLEINFELD, NGUYEN, and WATFORD, Circuit Judges.
Petitioner John Szabo filed his federal habeas corpus petition well outside
the one-year statute of limitations established by 28 U.S.C. § 2244. He contends
FILED
APR 28 2014
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.

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that we should nonetheless deem his petition timely because he is entitled to
equitable tolling of the limitations period.
Even if Szabo is entitled to equitable tolling for the period through October
28, 2008, we conclude he is not entitled to equitable tolling beyond that date. On
that date, the state trial court appointed new postconviction counsel for Szabo. The
court also ruled that Szabo had been dilatory in pursuing his first state
postconviction petition, and noted there had been a “failure to timely file a petition
for review.” That ruling put Szabo on notice that any further attempts to pursue the
claims asserted in his first state postconviction petition—either in the state trial
court or the state court of appeals—might be deemed untimely, therefore depriving
him of statutory tolling. See 28 U.S.C. § 2244(d)(2).
Szabo thereafter diligently pursued a successive state postconviction petition
in an attempt to exhaust his state court remedies. But Szabo did not act with
reasonable diligence in pursuing federal habeas corpus relief. Szabo could have
filed a “protective” federal habeas corpus petition and asked the federal court to
stay proceedings while he exhausted his federal claims in state court. The Supreme
Court has specifically noted that this procedure is available to a state prisoner faced
with uncertainty about whether his state postconviction petition is “properly filed”
for purposes of statutory tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 416

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(2005). And, in circumstances similar to those faced by Szabo here, we have held
that a state prisoner’s failure to file a protective federal petition “does not
demonstrate the diligence required for application of equitable tolling.” White v.
Martel, 601 F.3d 882, 884–85 (9th Cir. 2010) (per curiam).
Szabo waited more than two years after the state court’s October 28, 2008,
ruling before he filed his federal habeas corpus petition. That is far longer than the
eleven-month delay we held showed a lack of diligence on the part of the petitioner
in White. See id. Szabo’s lengthy delay in filing his federal petition may have
been due to the erroneous advice of his state postconviction counsel. But attorney
error of that nature does not excuse Szabo’s lack of diligence in failing to file
earlier. See Lawrence v. Florida, 549 U.S. 327, 336–37 (2007).
AFFIRMED.

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