Opinion
No. 06-55097.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed June 14, 2007.
Roberto Felix, Corcoran, CA, pro se.
Federal Public Defender's Office, Los Angeles, CA, for Petitioner-Appellant.
Marc Aaron Kohm, Office of the California Attorney General, Los Angeles, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Central District of California, S. James Otero, District Judge, Presiding. D.C. No. CV-05-05291-SJO.
Before: LEAVY, RYMER, and T.G. NELSON, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
California state prisoner Roberto Felix appeals from the district court's judgment denying as untimely his habeas petition under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo, Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003), and we affirm.
Felix contends that his allegations in response to the State's motion to dismiss his § 2254 petition were legally sufficient to entitle him to a hearing on the issue of equitable tolling. We disagree. As the magistrate judge observed, "while imprisoned at Corcoran in 2003, petitioner was able to file a detailed habeas corpus petition in the California Supreme Court, and such petition is virtually identical to" the § 2254 petition he filed in the district court. Nevertheless, the record indicates that Felix waited more than a year after the California Supreme Court denied his state habeas petition before he filed his § 2254 petition. Accordingly, we conclude that Felix was not "pursuing his rights diligently" and is therefore not entitled to equitable tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).