Ronald McCall v. Sharon Blacketter

389 F. App'x 661

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 23, 2010
• Docket: 08-35705
• Status: Unpublished

Opinion

MEMORANDUM **

Oregon state prisoner Ronald Dean McCall appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

McCall contends that he is entitled’ to equitable tolling because his counsel failed to file his state petition for post-conviction relief in time to preserve his right to seek federal habeas relief. This contention fails because McCall has not demonstrated diligence or that an extraordinary circumstance beyond his control prevented him from timely filing his habeas petition. See Lawrence v. Florida, 549 U.S. 327, 336-37, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007); cf. Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir.2003). McCall’s contention that he is entitled to an evidentiary hearing on the issue of equitable tolling also fails. See Tapia v. Roe, 189 F.3d 1052, 1058 (9th Cir.1999).

We construe McCall’s briefing of additional issues as a motion to expand the certifícate of appealability. So construed, the motion is denied. See 9th Cir. R. 22-Re); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).

AFFIRMED.

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