Kelly v. Meske

97 F. App'x 754

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 19, 2004
• Docket: No. 03-16446
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Gary Mandel Kelly appeals pro se the dismissal of his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we review de novo. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999). We affirm.

The district court properly determined that Kelly was only entitled to statutory tolling during his second full round of state habeas review. See Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir.2003) (stating that a state court prisoner is not entitled to tolling between his first completed round of state habeas review and the commencement of another round); King v. Roe, 340 F.3d 821, 823 (9th Cir.2003) (per curiam) (stating that if a state prisoner’s subsequent state court habeas petitions are not limited to an elaboration of the facts relating to the claims in the first round, the subsequent petitions constitute new rounds and the gap between the rounds is not tolled). Even giving Kelly the benefit of tolling during his second round of collateral review, his § 2254 petition was untimely.

Kelly’s actual innocence contention cannot satisfy the standards of Schlup v. Delo, 518 U.S. 298, 316, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) to bypass any procedural default, as his argument that he is actually innocent of being eligible for the Three Strikes punishment is foreclosed by People v. Avery, 27 Cal.4th 49, 115 Cal. Rptr.2d 403, 38 P.3d 1 (2002) (holding that a Texas conviction for burglary qualifies as a prior serious felony under California law as it fulfills the same requirements as the California statute).

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.