Villagomez v. Scribner

121 F. App'x 260

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 11, 2005
• Docket: No. 04-16496; D.C. No. CV-03-5966-REC/TAG
• Status: Published

Opinion

MEMORANDUM

**

Sandy Villagomez, a California state prisoner, appeals pro se the dismissal as untimely of his habeas corpus petition brought under 28 U.S.C. § 2254. Villagomez contends that even though the California Supreme Court filed its decision on July 9, 2003, the statute of limitations should have continued to be tolled under 28 U.S.C. § 2244(d)(2) until he received the decision on July 11, 2003. This contention lacks merit. See Gaston v. Palmer, 387 F.3d 1004, 1010 (9th Cir.2004) (holding that statute of limitations is tolled from date of filing to date of disposition of state court habeas petition). Villagomez also contends that the district court should have extended the federal petition’s due date under Fed.R.Civ.P. 6(e), which provides that “[wjhenever a party ... is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party ... 3 days shall be added to the prescribed period.” This contention lacks merit because the time for filing Villagomez’s habeas petition ran from the time state court collateral proceedings no longer were pending, and not from any service date. See 28 U.S.C. § 2244(d)(2); Kyle v. Campbell Soup Co., 28 F.3d 928, 930 (9th Cir.1994).

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.