FILED
NOT FOR PUBLICATION MAR 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERARDO LOPEZ, No. 08-56176
Petitioner - Appellant, 2:07-cv-06954-ODW-JTL
v.
MEMORANDUM*
LARRY SMALL, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted October 6, 2010
Pasadena, California
Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.
The California Superior Court’s dismissal of Lopez’s state habeas petition
was the last-reasoned decision regarding this petition, and accordingly we look
through the opinions of the California Court of Appeal and California Supreme
Court, which affirmed the Superior Court’s denial without explanation. See Ylst v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Nunnemaker, 501 U.S. 797, 803, 806 (1991). We conclude that when the
California Superior Court stated that “[a]s to matters alleged to have occurred in
2002, [Lopez] [did] not disclose[] the reasons for delaying the presentation of these
facts to the court,” it was denying Lopez’s state habeas petition as untimely. See
Bonner v. Carey, 425 F.3d 1145, 1148–49 (9th Cir. 2005), amended on other
grounds by 439 F.3d 993 (9th Cir. 2006). Because the California courts dismissed
Lopez’s petition as untimely, it was not “properly filed” for purposes of AEDPA,
and Lopez is not entitled to tolling under 28 U.S.C. § 2244(d)(2). Id. Accordingly,
none of the time before or during the superior court’s consideration of that petition
is statutorily tolled. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). As a result,
Lopez’s federal habeas petition is time-barred under AEDPA’s one-year statute of
limitations. 28 U.S.C. § 2244(d)(2). Because we affirm the district court on this
ground, we need not address whether Lopez is eligible for equitable tolling of the
six-month period between his filing of his habeas petitions with the superior court
and court of appeal. See generally Holland v. Florida, 130 S. Ct. 2549 (2010).
AFFIRMED.
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