Giacoma v. Veal

245 F. App'x 650

Opinion

MEMORANDUM

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California state prisoner Donald L. Giacoma appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2254 petition as time-barred. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

The district court granted a certificate of appealability as to whether Giacoma’s § 2254 petition is barred by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) statute of limitations. We conclude that it is. Giacoma’s second state habeas petition to the California Supreme Court was denied as untimely. As such, it was not “properly filed,” and, consequently, it does not toll the AEDPA limitations period. See Pace v. DiGuglielmo, 544 U.S. 408, 413-14, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); Bonner v. Carey, 425 F.3d 1145, 1148-49 (9th Cir.2005), amended by 439 F.3d 993 (9th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 132, 166 L.Ed.2d 97 (2006). Giacoma is also not entitled to tolling for the twenty-day interval between the final denial of his first round of state habeas petitions and the filing of his second state habeas petition in the California Supreme Court, see Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir.2003), nor has he demonstrated any entitlement to equitable tolling, see Pace, 544 U.S. at 418, 125 S.Ct. 1807. Accordingly, the district court properly dismissed Giacoma’s § 2254 petition as time-barred.

AFFIRMED.

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