Samuel Saldana v. G. D. LEWIS, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMUEL SALDANA,
Petitioner - Appellant,
v.
G. D. LEWIS, Warden,
Respondent - Appellee.
No. 12-16605
D.C. No. 2:11-cv-02149-JAM-
DAD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted March 10, 2015**
San Francisco California
Before: McKEOWN, MURGUIA, and FRIEDLAND, Circuit Judges.
Petitioner/Appellant Samuel Saldaña was convicted of carjacking by a jury
in California’s Sacramento County. Saldaña filed a timely petition for writ of
habeas corpus in the Eastern District of California. Saldaña then dismissed his
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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petition in the Eastern District voluntarily, litigated his claims to completion in
state court, and returned to the 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). Saldaña
now argues that he is entitled to equitable tolling.
By dismissing his first federal petition “without prejudice,” Saldaña argues,
the district court misled Saldaña to believe that he would be free to file a second
petition after exhausting his claims in state court without regard for the statute of
limitations. However, Saldaña cannot have relied on the district court’s order
because he voluntarily dismissed his first petition before the order issued. A
voluntary dismissal terminates the action immediately, leaving nothing more for
the district court to do. See Fed. R. Civ. P. 41(a)(1)(A)(i); Commercial Space
Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1077 (9th Cir. 1999). Further, Saldaña’s
second petition would have been untimely no matter what the district court might
have said because the one-year statute of limitations had run by the time Saldaña
dismissed the first petition. See Duncan v. Walker, 533 U.S. 167, 181–82 (2001)
(a pending federal habeas petition does not toll the statute of limitations). Finally,
a district court’s statement that dismissal is “without prejudice” accurately
describes the consequences of dismissal and is not misleading. See Ford v. Pliler,
590 F.3d 782, 788–89 (9th Cir. 2009).
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Saldaña also contends he is entitled to an evidentiary hearing on his
argument that the passing of the limitations period should be excused because he is
actually innocent. The district court did not abuse its discretion in denying a
hearing because Saldaña has not alleged the existence of evidence demonstrating
that, “but for constitutional error, no reasonable factfinder would have found
[Saldaña] guilty.” See 28 U.S.C. § 2254(e)(2)(B). A witness’s contradictory
testimony in an earlier trial does not “fundamentally call into question the
reliability of [Saldaña’s] conviction” in light of the other evidence against Saldaña.
See Sistrunk v. Armenakis, 292 F.3d 669, 676–77 (9th Cir. 2002). An evidentiary
hearing is not warranted for the additional reason that the witness’s contradictory
testimony “could . . . have been previously discovered through the exercise of due
diligence.” See 28 U.S.C. § 2254(e)(2)(A)(ii). Not only was the contradiction
apparent on the records of the two trials, but Saldaña’s counsel confronted the
witness with the inconsistency during the Sacramento County trial.
AFFIRMED.
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