Opinion
No. 11-18011 D.C. No. 2:10-cv-03258-GEB-DAD
12-10-2013
MARK CHIN, Petitioner - Appellant, v. RICK HILL, Warden, Respondent - Appellee.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Submitted December 4, 2013
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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San Francisco, California
Before: TROTT, THOMAS, and MURGUIA, Circuit Judges.
Mark Chin appeals from the district court's dismissal of his petition for a writ of habeas corpus, which the district court determined was time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. § 2244(d). We affirm.
For the first time on appeal, Chin asserts that the state corrections department's denial of his administrative appeal, which formed the basis of his habeas petition, was a "judgment" subject to direct review by the U.S. Supreme Court, § 2244(d)(1)(A), rather than "the factual predicate of [his] claim," § 2244(d)(1)(D). He argues that, because his petition is governed by § 2244(d)(1)(A), he was entitled to take advantage of that sub-section's provision that AEDPA's one-year limitation period does not begin to run until "the expiration of the time for seeking [direct] review." Consequently, Chin asserts, the limitation period only began to run 90 days after his administrative appeal was denied - once the deadline to petition for a writ of certiorari had passed.
Chin had conceded before the district court that the limitations period began to run when the denial of his administrative appeal was issued, and he was right. "[W]hen a habeas petitioner challenges an administrative decision affecting the 'fact or duration of his confinement,' AEDPA's one-year statute of limitations runs from when the 'factual predicate' of the habeas claims 'could have been discovered through the exercise of due diligence.' As a general rule, the state agency's denial of an administrative appeal is the 'factual predicate' for such habeas claims." Mardesich v. Cate, 668 F.3d 1164, 1172 (9th Cir. 2012) (internal citations omitted) (quoting § 2244(d)(1)(D)).
AFFIRMED.