Robert Howard Richardson v. Anthony C. Newland; Glenn A. Mueller

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT HOWARD RICHARDSON,
Petitioner - Appellant,
v.
ANTHONY C. NEWLAND; GLENN A.
MUELLER,
Respondents - Appellees.
No. 12-17173
D.C. No. 2:97-cv-02318-LKK-
DAD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Submitted March 16, 2016**
San Francisco, California
Before: KLEINFELD, RAWLINSON, and HURWITZ, Circuit Judges.
Robert Richardson, who was convicted in California state court of first degree
murder involving the personal use of a firearm, appeals the district court’s order
* 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).
FILED
JUN 10 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28
U.S.C. §§ 1291 and 2253. We affirm.
1. We have already determined that Richardson is not entitled to statutory
tolling under 28 U.S.C. § 2244(d)(2) because his state habeas petition was deemed
untimely in state court and thus was not “‘properly filed’ for purposes of tolling
AEDPA’s one-year statute of limitations.” Richardson v. Newland, 171 Fed. App’x
156, 157 (9th Cir. 2006) (quoting 28 U.S.C. § 2244(d)(2)). We decline
Richardson’s invitation to revisit that ruling.
2. Richardson is not entitled to equitable tolling because no “‘extraordinary
circumstance stood in his way’ and prevented timely filing” of his federal petition.
Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005)). California’s indeterminate state habeas limitations regime
may have prevented Richardson from being certain whether a state court would find
his petition timely, but it did nothing to discourage him from filing that petition
earlier. Had he done so, he would have been able to file his federal petition within
the one-year limitations period and “he would not now be facing any time problem,
state or federal.” Pace, 544 U.S. at 419.
AFFIRMED.

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