NOT FOR PUBLICATION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.