Martinez v. Giurbino

120 F. App'x 157

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 14, 2005
• Docket: No. 02-56671
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Thomas Martinez, Jr. appeals pro se the district court’s order dismissing his 28 U.S.C. § 2254 petition as time-barred, and its order denying his motion for reconsideration. We have jurisdiction to review the post-judgment motion pursuant to 28 U.S.C. § 1291, and we affirm.

We lack jurisdiction to review the underlying judgment dismissing Martinez’s § 2254 petition because Martinez did not file a timely tolling motion and did not file a notice of appeal within 30 days. See Fed. R.App. P. 4(a)(1); Scott v. Younger, 739 F.2d 1464, 1466-67 (9th Cir.1984). Accordingly, the scope of Martinez’s appeal is limited to the denial of his motion for reconsideration.

We review for abuse of discretion the district court’s denial of Martinez’s motion for reconsideration. See Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1463 & n. 35 (9th Cir.1992). We conclude that the district court correctly determined that Martinez is not entitled either to statutory tolling for the gap between his first and second rounds of state habeas petitions, see King v. Roe, 340 F.3d 821, 822-23 (9th Cir.2003) (per curiam), or to equitable tolling. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001). Accordingly, the district court properly denied Martinez’s motion for reconsideration.

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.