Diallo Uhuru v. Edmund Brown , 413 F. App'x 962 ( 2011 )

FILED
NOT FOR PUBLICATION FEB 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DIALLO E. UHURU, No. 09-56722
Petitioner - Appellant, D.C. No. 3:08-cv-02424-IEG-AJB
v.
MEMORANDUM *
EDMUND G. BROWN, Jr.; JOHN
MARSHALL, Warden,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Submitted February 8, 2011 **
Pasadena, California
Before: KOZINSKI, Chief Judge, HAWKINS and FISHER, Circuit Judges.
Diallo E. Uhuru appeals from the dismissal of his 28 U.S.C. § 2254 habeas
petition challenging his 2000 conviction for second degree murder. The district
*
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).
court dismissed his petition as untimely, finding that Uhuru was not entitled to
equitable tolling for sufficient duration to render his petition timely. We affirm.
We decline the state’s suggestion to review the adequacy of the certificate of
appealability (COA) issued by the district court because we “are not required to
examine allegedly defective COAs in the face of jurisdictional challenges.” Phelps
v. Alameda, 366 F.3d 722, 726 (9th Cir. 2004).
The district court properly concluded that Uhuru was not entitled to
equitable tolling for sufficient duration to make his petition timely. The court
carefully reviewed Uhuru’s medical records and determined those periods of time
for which Uhuru was and was not entitled to equitable tolling. See Bills v. Clark,
--- F.3d ----, 2010 WL 4968692, at *7 (9th Cir. Dec. 8, 2010) (setting out the legal
standard for establishing equitable tolling on account of mental illness). The
records cited by Uhuru do not undermine the district court’s findings.
AFFIRMED.
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