FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROMEL VALENTINO WHITE,  No. 08-16387

Petitioner-Appellant, D.C. No.

v. 2:06-cv-02840-JKS- 

M EFB IKE MARTEL, Warden,

Respondent-Appellee. ORDER AND

OPINION 

Appeal from the United States District Court

for the Eastern District of California

James K. Singleton, Senior District Judge, Presiding

Argued and Submitted

March 9, 2010—San Francisco, California

Filed April 7, 2010

Before: J. Clifford Wallace, Susan P. Graber and

M. Margaret McKeown, Circuit Judges.

Per Curiam Opinion

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COUNSEL

Charles M. Bonneau, II, Esq., Sacramento, California, for

petitioner-appellant Romel Valentino White.

Justain P. Riley, Esq., Deputy State Attorney General, Sacramento, California, for respondent-appellee Mike Martel, Warden.

ORDER

This order redesignates the memorandum filed on March

19, 2010, as a published per curiam opinion.

OPINION

PER CURIAM:

Petitioner White appeals from the district court’s dismissal

of his habeas petition as untimely. We review a district

court’s denial of a habeas corpus petition de novo. Gonzalez

v. Brown, 585 F.3d 1202, 1206 (9th Cir. 2009). We have

jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. 

I.

[1] The Anti-Terrorism and Effective Death Penalty Act of

1996 (AEDPA) has a one-year statute of limitations for

habeas cases by persons in custody pursuant to a state court

judgment. 28 U.S.C. § 2244(d)(1). The AEDPA statute of

limitations may be tolled for the time during which a “properly filed” state habeas petition is pending. Id. § 2244(d)(2).

The Supreme Court has made it clear that “[w]hen a postconviction [habeas] petition is untimely under state law, that is

the end of the matter for purposes of § 2244(d)(2).” Pace v.

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DiGuglielmo, 544 U.S. 408, 414 (2005) (internal quotation

marks omitted). Such a petition is not “properly filed” so as

to trigger statutory tolling. Id. at 417. We have held that, pursuant to Pace, tolling under section 2244(d)(2) is unavailable

where a state habeas petition is deemed untimely under California’s timeliness standards. Bonner v. Carey, 425 F.3d

1145, 1149 (9th Cir. 2005). Here, California state courts

determined that White’s state habeas petition was untimely

under state law. Therefore, there was no “properly filed” state

petition, and White was not entitled to statutory tolling of

AEDPA’s one-year statute of limitations during the time

period when those state habeas proceedings were pending. 

White argues that California’s timeliness rule is not an “adequate” procedural bar because it is vague, ambiguous, and

inconsistently applied. However, the adequacy analysis used

to decide procedural default issues is inapplicable to the issue

of whether a state petition was “properly filed” for purposes

of section 2244(d)(2). See Zepeda v. Walker, 581 F.3d 1013,

1018 (9th Cir. 2009). White’s reliance on procedural bar case

law is misplaced. Id. at 1018 n.3. White is not entitled to statutory tolling of the AEDPA statute of limitations.

II.

White argues alternatively that equitable tolling should

apply to render his federal habeas petition timely. We construe this argument as a motion to expand the Certificate of

Appealability in this case to include the issue of equitable tolling, and we grant the motion. See Ninth Circuit Rule 22-1(e).

We review de novo the question of whether a statute of limitations should be equitably tolled. Harris v. Carter, 515 F.3d

1051, 1054 (9th Cir.), cert. denied, 129 S. Ct. 397 (2008).

[2] White’s primary argument for equitable tolling is that

Pace overruled earlier Ninth Circuit case law and that, until

this court’s mandate issued in Bonner, he reasonably relied on

earlier circuit precedent that would have tolled the AEDPA

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statute of limitations for the entire time that he was seeking

state habeas relief. To qualify for equitable tolling, petitioners

“must demonstrate that they have been pursuing their rights

diligently and that some extraordinary circumstance stood in

their way.” Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006)

(internal quotation marks and alterations omitted).

[3] Bonner was decided on October 6, 2005. White’s state

petition was first held untimely on January 6, 2006. Bonner’s

mandate issued on March 20, 2006. Yet White waited until

December 14, 2006—more than 14 months after Bonner,

more than 11 months after the state superior court held his

state petition untimely, and almost nine months after the Bonner mandate—to file his federal petition. The Supreme Court

in Pace acknowledged that “a petitioner trying in good faith

to exhaust state remedies may litigate in state court for years

only to find out at the end that he was never ‘properly filed,’

and thus that his federal habeas petition is time barred,” but

suggested that “[a] prisoner . . . might avoid this predicament

. . . by filing a ‘protective’ petition in federal court and asking

the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.” 544 U.S. at 416

(some internal quotation marks omitted). White insists that

such a stay and abeyance might have been denied, and that

this course of action would have been pointless or even detrimental. But by January 6, 2006, White had little to lose in filing in federal court and seeking a stay and abeyance, because

by then he knew (a) that his state petition had been held

untimely by the state superior court, and (b) that, under Bonner, the state court ruling of untimeliness would preclude tolling of the AEDPA statute of limitations—yet he waited until

December 14, 2006, to act in federal court. Such a delay does

not demonstrate the diligence required for application of equitable tolling. We hold that White’s case does not warrant an

application of equitable tolling. 

White has asked that we take judicial notice of certain facts

in support of his equitable tolling argument: (1) the Bonner

WHITE v. MARTEL 5309
docket sheet; (2) proceedings in another California habeas

case; and (3) state bar records reflecting disciplinary proceedings against White’s former counsel. Those facts are appropriate for judicial notice, and we therefore grant White’s request.

See United States v. 14.02 Acres of Land, 547 F.3d 943, 955

(9th Cir. 2008); Dawson v. Mahoney, 451 F.3d 550, 551 n.1

(9th Cir. 2006) (order); Corder v. Gates, 104 F.3d 247, 248

n.1 (9th Cir. 1996). However, the facts that are the subject of

White’s requests for judicial notice do not alter our analysis

of his entitlement to equitable tolling.

III.

Finally, White argues that, as to one of his state habeas

claims, the state superior court did not make an untimeliness

finding but instead dismissed the claim on its merits; therefore, statutory tolling operates to render his federal habeas

petition timely as to that claim. We do not reach this argument. White does not appear to have made this argument in

the district court; his opposition to the motion to dismiss does

not suggest that one claim in his state habeas petition might

stand in a different legal posture than the others as to untimeliness. Generally, arguments not raised before the district

court are waived on appeal. O’Guinn v. Lovelock Corr. Ctr.,

502 F.3d 1056, 1063 n.3 (9th Cir. 2007). Also, this issue is

not encompassed by the Certificate of Appealability, and we

will not expand the certificate to include it.

AFFIRMED.

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