372 F. App'x 732

Andrew BRINKLEY, Petitioner-Appellant, v. James E. TILTON, Director of Corrections and Rehabilitation, Respondent-Appellee.

No. 07-16784.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 28, 2010.*

Filed March 26, 2010.

Andrew Brinkley, lone, CA, pro se.

*733Justain Riley, AGCA — Office of the California Attorney General, Sacramento, CA, for Respondent-Appellee.

Before: FARRIS, HALL, and LEAYY, Circuit Judges.

MEMORANDUM **

California state prisoner James Andrew Brinkley appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

Brinkley contends the district court erred in dismissing his § 2254 petition as untimely because he is entitled to statutory and equitable tolling. This contention lacks merit.

We review de novo, and we may affirm on any ground supported by the record. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003); Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir.1999).

Brinkley’s conviction became final on April 22, 2004. Cal. Rules of Ct., Rules 8.264 (formerly Rule 24), 8.268(c) (formerly Rule 25), 8.366 (formerly Rule 33.1) and 8.500(e) (formerly Rule 28). Brinkley’s § 2254 petition was due under the AEDPA one-year statute of limitations by April 22, 2005. 28 U.S.C. § 2244(d)(1)(A); Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.2001). There is no basis to apply statutory tolling because the one-year limitations period had already expired by the time Brinkley filed his first state petition on May 16, 2005. See 28 U.S.C. § 2244(d)(2); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001).

Nor has Brinkley established a basis for equitable tolling because he has not demonstrated that he pursued his claims with diligence or that extraordinary circumstances prevented him from timely filing his § 2254 petition. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); Miranda v. Castro, 292 F.3d 1063, 1065-66 (9th Cir.2002).1

AFFIRMED.

Brinkley v. Tilton
372 F. App'x 732

Case Details

Name
Brinkley v. Tilton
Decision Date
Mar 26, 2010
Citations

372 F. App'x 732

Jurisdiction
United States

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