Smith v. Adams

176 F. App'x 830

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 18, 2006
• Docket: No. 05-16283
• Status: Published

Opinion

MEMORANDUM

*

California state prisoner James Odra Smith appeals the district court’s dismissal as untimely of his § 2254 petition on remand from this court.

Smith claims that California’s time limits are not comparable to those held to be “filing conditions” in Pace v. DiGuglielmo¹ because California only requires that a petition be filed within a “reasonable period.” This argument is foreclosed by Circuit precedent.²

The language that the Tulare County Superior Court used to deny the petition is materially identical to the language that the Superior Court used in Bonner v. Carey.3 We held in Bonner that this amounts to a denial for untimeliness. Thus, under Pace v. DiGuglielmo,⁴ it was not “properly filed” for purposes of statutory tolling.⁵

Without the benefit of this statutory tolling, Smith’s petition is time-barred even if we were to grant him the equitable tolling to which he claims entitlement.

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 9th Cir. R. 36-3.

1 . Pace v. DiGuglielmo, 544 U.S. 408, 125 S. Ct. 1807, 1814, 161 L.Ed.2d 669 (2005).

2 . Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir.2005).

3 . Id.

4 . Pace v. DiGuglielmo, 544 U.S. -, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005).

5 . Pace v. DiGuglielmo, 544 U.S. -, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005); Bonner v. Carey, 425 F.3d 1145 (9th Cir. 2005).