Opinion
No. 08-16527.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed April 15, 2010.
Frank Michael Perea, Albuquerque, NM, pro se.
Jon Anderson, Esquire, Assistant Attorney General, Arizona Attorney General's Office, Phoenix, AZ, for Respondents-Appellees.
Appeal from the United States District Court for the District of Arizona, Roslyn O. Silver, District Judge, Presiding. D.C. No. 2:07-cv-02028-ROS.
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Former Arizona state prisoner Frank Michael Perea appeals pro se from the district court's judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Perea contends he is entitled to equitable tolling because an assistant federal public defender, not representing him, provided an outdated courthouse mailing address that caused him to file his habeas petition late. We agree with the district court that Perea has not demonstrated that an extraordinary circumstance beyond his control prevented him from timely filing his habeas petition, or that he has been pursuing his rights diligently. See Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); see also Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2002).
We construe Perea's additional arguments as a motion to expand the certificate of appealability. So construed, the motion is denied. See 9th Cir. R. 22-1 (e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).