Ervin v. Marshall

279 F. App'x 571

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 27, 2008
• Docket: No. 07-16145
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Wallace Ervin appeals pro se from the district court’s order dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Ervin contends he is entitled to statutory tolling of the Antiterrorism and Effective Death Penalty Act’s one-year statute of limitations pursuant to 28 U.S.C. § 2244(d)(2). However, because the California Superior Court rejected Ervin’s habeas petition as untimely, it was not “properly filed,” and he is not entitled to statutory tolling under § 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.