Bishop v. Castro

95 F. App'x 909

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 26, 2004
• Docket: No. 03-16025; D.C. No. CV-02-01127-FCD
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Michael Deon Bishop appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we affirm.

Bishop contends that he is entitled to statutory tolling because his first federal habeas petition was timely-filed, and thus he had an application for review “pending.” However, an application for federal habeas relief does not toll the limitations period pursuant to section 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). Bishop’s subsequent filings in state court do not entitle him to tolling as they were filed after the statute of limitations had expired. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001).

Bishop also contends that he is entitled to equitable tolling, but has not alleged extraordinary circumstances beyond his control that prevented him from filing a timely petition. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001), cert denied, 535 U.S. 1055, 122 S.Ct. 1913, 152 L.Ed.2d 823 (2002). Therefore, equitable tolling is not warranted. See id.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.