Bert Juarez v. P. D. BRAZELTON, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERT JUAREZ,
Petitioner-Appellant,
v.
P. D. BRAZELTON, Warden,
Respondent-Appellee.
No. 19-55236
D.C. No.
2:12-cv-02149-JLS-RAO
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Submitted January 14, 2021**
Pasadena, California
Before: CALLAHAN and WATFORD, Circuit Judges, and RAKOFF,*** District
Judge.
Bert Juarez appeals from the district court’s denial of his federal habeas
petition, in which he challenges various state court convictions. We granted a
* 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 Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
FILED
JAN 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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certificate of appealability limited to “whether the district court properly
determined that appellant’s newly exhausted claims were untimely, including
whether those claims relate back to his original 28 U.S.C. § 2254 petition.” We
affirm.
The district court correctly held that the newly exhausted claims asserted in
Juarez’s amended habeas petition were untimely. Juarez filed his original federal
habeas petition on March 14, 2012, which meant he had only one day remaining
before the statute of limitations imposed by the Antiterrorism and Effective Death
Penalty Act (AEDPA) expired. See 28 U.S.C. § 2244(d)(1). Even if Juarez was
entitled to tolling for the entire period between the filing and denial of his state
habeas petitions, AEDPA’s limitations period would have been tolled only until
February 13, 2014. Because Juarez did not file his amended petition until April 2,
2014, the newly exhausted claims he included in the amended petition were
untimely unless they relate back to the claims asserted in his original, timely filed
petition.
The district court correctly held that the newly exhausted claims do not
relate back to the claims asserted in the original petition. A new claim relates back
“only when it arises from the same core of operative facts as a claim contained in
the original petition.” Hebner v. McGrath, 543 F.3d 1133, 1134 (9th Cir. 2008).
Here, Juarez’s new claims are ineffective-assistance-of-counsel claims involving

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sufficiency of the evidence and the erroneous calling of witnesses at trial. Those
claims do not share the same core of operative facts as the claims involving
instructional errors asserted in the original petition. See id. at 1138–39. Juarez
argues that the newly exhausted claims in his amended petition must relate back
because he included those identical claims in unexhausted form in the original
petition, but we have previously rejected that very argument. See King v. Ryan,
564 F.3d 1133, 1135, 1142–43 (9th Cir. 2009).
Juarez also contends that the district court should have granted his request
for a stay under Rhines v. Weber, 544 U.S. 269 (2005), because he had good cause
for his failure to exhaust. We decline to address this issue because it falls outside
the scope of the certificate of appealability and Juarez has failed to make a
“substantial showing of the denial of a constitutional right” to justify expanding the
certificate of appealability. See Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir.
1999) (per curiam) (quoting 28 U.S.C. § 2253(c)(2)).
AFFIRMED.

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