Spikes v. Hickman

8 F. App'x 607

Opinion

MEMORANDUM²

California state prisoner Leamon Spikes appeals pro se the dismissal of his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We review de novo the district court’s dismissal, on statute of limitations grounds, of a petition for writ of habeas corpus, Bunney v. Mitchell, 241 F.3d 1151, 1154 (9th Cir.2001), and we affirm.

Because Spikes’ conviction became final after the enactment of Anti-terrorism and Effective Death Penalty Act of 1996, Spikes’ petition is subject to a one-year statute of limitations running from the date of which his conviction became final. 28 U.S.C. § 2244(d)(1). This statute of limitations is tolled for all of the period during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.1999).

Because Spike did not have any court petitions pending for over a year after his conviction became final, the statute of limitations was not tolled, he cannot benefit from tolling, and his habeas petition must be deemed untimely. Id.

AFFIRMED.

2 . This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.