Foster v. Alaska

72 F. App'x 680

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 15, 2003
• Docket: No. 02-35482; D.C. No. CV-02-00045-A-JWS
• Status: Published

Opinion

MEMORANDUM

**

Alaska state prisoner Jessie Foster appeals pro se the district court’s dismissal as untimely of his 28 U.S.C. § 2254 habeas petition challenging his conviction for sexual abuse of a minor. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we affirm.

Foster contends that his petition is not time-barred because Congress has not established a statute of limitations for the writ of habeas corpus. He is mistaken. See 28 U.S.C. § 2244(d). Foster’s reliance on pre-1996 caselaw is therefore misplaced. See Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1286-87 (9th Cir.1997), overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 540 (9th Cir.1998), abrogated by Woodford v. Garceau, 538 U.S. 202, 123 S.Ct. 1398, 1403, 155 L.Ed.2d 363 (2003).

To the extent that Foster seeks equitable tolling of the statute of limitations, we conclude he has failed to show any extraordinary factors beyond his control which prevented him from filing a federal petition during the several years after his unsuccessful pro se state petitions. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001) (stating that there must be “extraordinary circumstances” beyond the prisoner’s control that made it impossible to file a petition on time).

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.