Opinion
Argued and Submitted April 6, 2006.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
James Odra Smith, Corcoran, CA, pro se.
Timothy J. Foley, Esq., Federal Public Defender's Office, Sacramento, CA, for Petitioner-Appellant.
Justain P. Riley, DAG, Office of the California Attorney General Department of Justice, Sacramento, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of California, Lawrence J. O'Neill, Magistrate
Page 831.
Judge, Presiding. D.C. No. CV-02-06124-LJO.
Before SCHROEDER, Chief Judge, TROTT and KLEINFELD, Circuit Judges.
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.
California state prisoner James Odra Smith appeals the district court's dismissal as untimely of his § 2254 petition on remand from this court.
Smith claims that California's time limits are not comparable to those held to be "filing conditions" in Pace v. DiGuglielmo because California only requires that a petition be filed within a "reasonable period." This argument is foreclosed by Circuit precedent.
Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005).
Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir.2005).
The language that the Tulare County Superior Court used to deny the petition is materially identical to the language that the Superior Court used in Bonner v. Carey. We held in Bonner that this amounts to a denial for untimeliness. Thus, under Pace v. DiGuglielmo, it was not "properly filed" for purposes of statutory tolling.
Id.
Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005).
Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005); Bonner v. Carey, 425 F.3d 1145 (9th Cir.2005).
Without the benefit of this statutory tolling, Smith's petition is time-barred even if we were to grant him the equitable tolling to which he claims entitlement.
AFFIRMED.