Francisco Almanza-Garcia v. Bridgett Amsberry

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO ALMANZA-GARCIA,
Petitioner-Appellant,
v.
BRIDGETT AMSBERRY,
Respondent-Appellee.
No. 20-35260
D.C. No. 2:18-cv-01704-HZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, Chief District Judge, Presiding
Submitted March 1, 2021**
Portland, Oregon
Before: PAEZ and WATFORD, Circuit Judges, and TUNHEIM,*** District Judge.
Francisco Almanza-Garcia appeals the district court’s judgment dismissing
his federal habeas petition as untimely. We affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
FILED
MAR 3 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

Page 2 of 4
1. A federal habeas petition challenging a state court conviction must be
filed within one year of the date on which the conviction became final. 28 U.S.C.
§ 2244(d)(1). The one-year statute of limitations is tolled, however, during the
pendency of a “properly filed” application for state post-conviction relief. Id.
§ 2244(d)(2). Almanza’s convictions became final on December 15, 2015. Under
the prison mailbox rule, Almanza was deemed to have filed his petition for state
post-conviction relief prior to December 15, 2015, so tolling began immediately.
On February 21, 2017, the state post-conviction court denied Almanza’s petition
for failure to state a claim for relief. Almanza did not file his federal habeas
petition until June 5, 2018, more than a year later. Almanza claims that tolling
continued after February 21, 2017, while he appealed the state post-conviction
court’s denial of his petition, and that tolling did not end until October 10, 2018,
when the denial of this appeal became effective.
We reject Almanza’s argument. This court has held that a petitioner is not
entitled to tolling during the pendency of an appeal from a non-appealable order
because such an appeal is not a “properly filed” application for post-conviction
relief. Ramirez v. Yates, 571 F.3d 993, 999 (9th Cir. 2009). Here, the order
Almanza attempted to appeal was non-appealable because under Oregon law, “a
judgment dismissing a meritless petition is not appealable,” and a meritless petition

-- 2 of 4 --

Page 3 of 4
is defined as one that “fails to state a claim upon which post-conviction relief may
be granted.” Or. Rev. Stat. § 138.525(2), (3).
2. In the alternative, Almanza argues that he is entitled to equitable tolling.
A petitioner seeking to invoke equitable tolling must establish “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Almanza alleges
that his post-conviction counsel rendered ineffective assistance, constituting an
“extraordinary circumstance.” He bases this claim on his post-conviction
attorney’s filing of an affidavit stating that he had reviewed the case and did not
believe the petition could be amended to state a ground for relief. But in doing so,
Almanza’s counsel was simply abiding by Oregon law, which explicitly requires a
post-conviction attorney to file such an affidavit if he believes the petition cannot
state a valid claim. Or. Rev. Stat. § 138.590(5).
3. Finally, Almanza requests that we either remand to the district court with
instructions to stay his petition pending the Supreme Court’s decision in Edwards
v. Vannoy, No. 19-5807, or authorize him to pursue a claim under Ramos v.
Louisiana, 140 S. Ct. 1390 (2020), in a second or successive petition. We are not
in a position to order the district court to stay the petition because it was properly
dismissed as untimely. And while the Supreme Court is considering whether

-- 3 of 4 --

Page 4 of 4
Ramos should apply retroactively in Edwards, it has not yet ruled on the matter, so
to authorize a second or successive petition now would be premature.
AFFIRMED.

-- 4 of 4 --