NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 04 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GREGORY LYNN NORWOOD, No. 07-55044
Petitioner - Appellant, D.C. No. CV-99-07315-SVW
v.
MEMORANDUM*
BILL LOCKYER, Attorney General,
Respondent - Appellee,
WILLIAM SULLIVAN, et al.,
Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted August 2, 2010**
Pasadena, California
*
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).
Before: RYMER, KLEINFELD, *** and GRABER, Circuit Judges.
Gregory Lynn Norwood appeals the district court’s dismissal of his 28
U.S.C. § 2254 habeas corpus petition. We deferred submission pending a response
by the California Supreme Court to our request for certification in Chaffer v.
Prosper, 542 F.3d 662 (9th Cir. 2008) (order) (Chaffer I), and issuance of the
mandate in Waldrip v. Hall, 548 F.3d 729 (9th Cir. 2008), cert. denied, 130 S. Ct.
2415 (2010). As both events have now happened, and the parties have furnished
supplemental briefs, we resubmit the case. We affirm.
Whether Norwood is entitled to “gap tolling” follows from our decision in
Chaffer v. Prosper, 592 F.3d 1046 (9th Cir. 2010) (per curiam) (Chaffer II). The
delay here, 181 days (or even a few days less, as Norwood claimed in district
court), is far more than the period most states allow; also, his petitions offered no
persuasive justification for the delay. Chaffer II, 592 F.3d at 1048; see also
Waldrip, 548 F.3d at 731.
Nor is Norwood entitled to equitable tolling. He failed to carry his “heavy
burden” of showing diligence and some extraordinary circumstance that stood in
***
The Honorable Ann Aldrich was originally a member of this panel.
She died prior to circulation of this memorandum disposition and, pursuant to
General Order 3.2(g), Judge Kleinfeld was drawn as replacement. Judge Kleinfeld
was provided the briefs and other materials received by the other members of the
panel.
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the way. Chaffer II, 592 F.3d at 1048. He offered no explanation for delay when
filing in the California Court of Appeal, even though required by that court to do
so, and subsequent explanations (limited law library access, being moved to
different cells, temporary lockdowns) do not show circumstances that are out of the
ordinary for prison life or that would have made it “impossible” to file on time. Id.
at 1049; Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). We need not decide
Norwood’s alternative contention based on California’s indeterminate standard, as
he was not diligent in any event. See Waldron-Ramsey v. Pacholke, 556 F.3d
1008, 1013 (9th Cir.), cert. denied, 130 S. Ct. 244 (2009). And, as in Chaffer II,
Norwood shows no basis for equitably tolling the time for filing his federal petition
based on his reading of California’s timeliness rules. See 592 F.3d at 1049.
To the extent Norwood argues that the state waived the statute of limitations
and the district court abused its discretion in allowing the state to pursue it, we
disagree. Even if the issue is within the certificate of appealability, Norwood
points to nothing in the record suggesting that the state intelligently or strategically
waived the issue such that the district court lacked discretion to consider it. See
Day v. McDonough, 547 U.S. 198, 202, 211 (2006). Likewise, the state made no
pertinent concession. Further, the state did not waive the defense by failing to re-
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raise it until after Evans v. Chavis, 546 U.S. 189 (2006), was decided. See
Waldrip, 548 F.3d at 733.
Finally, we see no reason why the district court should have held an
evidentiary hearing, see id. at 737, or why the timeliness questions in this case
should be certified to the California Supreme Court. That was already done in
Chaffer I, and the supreme court made its position clear.
AFFIRMED.
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