Matthews v. Galaza

53 F. App'x 409

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2002
• Docket: No. 00-57036; D.C. No. CV-99-09701-SVW
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Lance O. Matthews appeals pro se the dismissal as untimely of his 28 U.S.C. § 2254 habeas petition challenging his jury-trial conviction for four counts of robbery. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

The district court correctly determined that Matthews’ petition is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). The court, however, erroneously declined to review Matthews’ objections to the magistrates’ report and recommendation, see Ford v. Hubbard, 305 F.3d 875, 882 (9th Cir.2002) (applying the prison mail-box rule to prisoners’ pro se filings), and accordingly declined to consider whether a certificate of appealability (“COA”) should have issued on equitable tolling grounds. Cf. United States v. Howell, 231 F.3d 615, 622 (9th Cir.2000) (recognizing that the language of 28 U.S.C. § 636 dictates that district courts are required to make a de novo determination to resolve the objections to a magistrate’s report and recommendation), cert. denied, — U.S. —, 122 S.Ct. 76, 151 L.Ed.2d 40 (2001). We now consider the issue and conclude that a COA is not warranted on equitable tolling grounds. See 28 U.S.C. § 2253(c)(2).

The issues raised by Matthews that are outside of the COA granted by the district court are not properly before us and we do not review them. See Hiivala v. Wood, 195 F.3d 1098, 1107 (9th Cir.1999) (per curiam) (limiting issues on appeal to those specified in the COA).

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.