James Mulgrew v. M. McDonald , 474 F. App'x 650 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES ARTHUR MULGREW, No. 09-17737
Petitioner - Appellant, D.C. No. 2:09-cv-00767-MCE
v.
MEMORANDUM *
M. McDONALD, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted July 17, 2012 **
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
California state prisoner James Arthur Mulgrew appeals from the district
court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We
have jurisdiction under 28 U.S.C. § 2253, and we affirm.
Mulgrew contends that the district court erred in dismissing his petition as
*
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).
untimely. We need not decide whether Mulgrew was entitled to any form of
tolling to render his petition timely because the district court lacked jurisdiction to
consider the petition. See 28 U.S.C. § 2254(a); Bailey v. Hill, 599 F.3d 976, 982
(9th Cir. 2010) (“§ 2254(a) does not confer jurisdiction over a state prisoner’s
in-custody challenge to a restitution order imposed as part of a criminal sentence”);
Washington v. Lampert, 422 F.3d 864, 869 (9th Cir. 2005) (reviewing court may
affirm on any ground supported by the record).
AFFIRMED.
2 09-17737