Opinion
No. 07-56665.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed April 1, 2010.
Floyd Eugene Barnes, lone, CA, pro se.
Kevin Vienna, Supervising Deputy Attorney General, Office of the California Attorney General, San Diego, CA, for Respondent-Appellee .
Appeal from the United States District Court for the Southern District of California, Barry T. Moskowitz, District Judge, Presiding. D.C. No. CV-06-01849-BTM.
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
California state prisoner Floyd Eugene Barnes appeals pro se from the district court's judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
The district court did not err when it dismissed Barnes' habeas petition as untimely. See 28 U.S.C. § 2244(d)(1). Barnes' state habeas petition filed in the San Diego Superior Court did not toll AEDPA's limitations period because it was not properly filed. See Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) ("Because the state court rejected petitioner's [postconviction] petition as untimely, it was not `properly tiled,' and he is not entitled to statutory tolling under § 2244(d)(2)."); Bonner v. Carey, 425 F.3d 1145, 1148-49 (9th Cir. 2005) (applying Pace to California's timeliness rule for postconviction petitions), as amended, 439 F.3d 993 (9th Cir. 2006). Barnes' contention that application of Pace to this case violates the constitution's Ex Post Facto clause is without merit. See Allen v. Siebert, 552 U.S. 3, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007) (per curiam) (applying Pace to a habeas petition filed before Pace was decided).
Barnes contends the district court erred because it failed to determine whether California's timeliness rule is "adequate." A state's timeliness rule is a "condition to filing" and not a "procedural bar." Pace, 544 U.S. at 417, 125 S.Ct. 1807. Therefore, "whether a condition to filing is firmly established and regularly followed is irrelevant." See Zepeda v. Walker, 581 F.3d 1013, 1018 (9th Cir. 2009).