Smith v. Marshall , 361 F. App'x 840 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES EARL SMITH, No. 06-55894
Petitioner - Appellant, D.C. No. CV-05-05343-GHK
v.
MEMORANDUM *
JOHN MARSHALL,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
California state prisoner James Earl Smith appeals pro se from the district
court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
DRS/Research
jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
The statute of limitations under 28 U.S.C. § 2244(d) began to run on August
9, 2000, the day following the denial of Smith’s administrative appeal from the
denial of parole. See Redd v. McGrath, 343 F.3d 1077, 1082-85 (9th Cir. 2003).
Even applying all possible statutory tolling to the time Smith’s state habeas
petitions were pending in state court, the limitations period expired on December
13, 2004. Accordingly, the instant § 2254 petition, which was submitted to prison
officials for mailing on June 23, 2005, was untimely.
AFFIRMED.
DRS/Research 2 06-55894