Moppins v. Carey

Ninth Circuit

Moppins v. Carey

325 F. App'x 599

Court of Appeals for the Ninth Circuit·Decided May 21, 2009·No. No. 08-15220·Published

Opinion

MEMORANDUM **

California state prisoner Frank Irvin Moppins appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Moppins contends that he is entitled to statutory tolling during the pendency of a state habeas petition filed in superior court; and to equitable tolling based upon the misconduct of his attorney. Moppins [600] has failed to show that the state habeas petition referred to provides a proper basis for statutory tolling, or that extraordinary circumstances beyond his control prevented him from timely filing. See 28 U.S.C. § 2244(d)(2); Welch v. Carey, 350 F.3d 1079, 1082 (9th Cir.2003); Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003).

We construe the uncertified issues raised in Moppins’s opening brief as a motion to expand the certificate of appeal-ability, and we deny the motion. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).

AFFIRMED.

Footnotes

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MEMORANDUM **

California state prisoner Frank Irvin Moppins appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Moppins contends that he is entitled to statutory tolling during the pendency of a state habeas petition filed in superior court; and to equitable tolling based upon the misconduct of his attorney. Moppins [600] has failed to show that the state habeas petition referred to provides a proper basis for statutory tolling, or that extraordinary circumstances beyond his control prevented him from timely filing. See 28 U.S.C. § 2244(d)(2); Welch v. Carey, 350 F.3d 1079, 1082 (9th Cir.2003); Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003).

We construe the uncertified issues raised in Moppins’s opening brief as a motion to expand the certificate of appeal-ability, and we deny the motion. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).

AFFIRMED.

Footnotes

Moppins v. Carey, 325 F. App'x 599 (9th Cir. 2009).

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Opinion

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