Young v. Sullivan

203 F. App'x 155

Opinion

MEMORANDUM

**

California state prisoner Gregory Leon Young appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 petition as time-barred. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Young contends that the district court erred by finding that he was not entitled to statutory tolling during the time period between the filing of his first and second state post-conviction petitions. Because the second petition contained numerous new claims, we conclude that it constituted a second round of filing. See King v. Roe, 340 F.3d 821, 823 (9th Cir.2003) (per cu-riam). Accordingly, the district court did not err in finding that this period did not statutorily toll the statute of limitations under the Antiterrorism and Effective Death Penalty Act. See 28 U.S.C. § 2244(d).

Young also contends that the district court erred by not finding that he was entitled to equitable tolling during the time period that he mistakenly believed he had a direct appeal pending before the California Court of Appeal. We reject this contention because Young has not shown that his misunderstanding of the status of his appeal constituted an “extraordinary circumstance.” See Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Furthermore, we agree with the district court that Young was not diligent in pursuing his rights once he became aware that no appeal had been filed. See id.

The motion of appellant’s counsel Shakti Murthy, Esq., to withdraw as appointed counsel is granted. Murthy shall serve this memorandum disposition on appellant Young and shall, within 14 days of the filing date of this order, file a proof of service with this court.

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.