Stover v. Idaho

123 F. App'x 308

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2005
• Docket: No. 04-35451
• Status: Published

Opinion

MEMORANDUM

**

Jessie Earl Stover, an Idaho state prisoner, appeals pro se the district court’s judgment dismissing his 28 U.S.C. § 2254 petition for writ of habeas corpus as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, we review de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we affirm.

Stover contends that he is entitled to statutory and equitable tolling. Stover is not entitled to statutory tolling because he did not have a properly filed application for post-conviction or other collateral relief pending before a state court during the relevant time period to toll the statute of limitation. See Saffold v. Carey, 312 F.3d 1031, 1033 (9th Cir.2002). To the extent that he argues that his 42 U.S.C. § 1983 action should be construed as a § 2254 action to toll the limitation period, this contention fails. See 28 U.S.C. § 2244(d)(2); Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 2124-29, 150 L.Ed.2d 251 (2001) (concluding that there is no tolling during pendency of federal habeas petition).

Likewise, Stover has failed to show any extraordinary circumstances beyond his control that rendered it impossible to file his federal habeas petition on time. See Calderon v. United States Disk Ct. for the Cent. Disk of Cal., 128 F.3d 1283, 1288 (9th Cir.1997), overruled on other grounds en banc, 163 F.3d 530, 540 (9th Cir.1998); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999).

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.