Scott v. Sisto

FILED
NOT FOR PUBLICATION MAR 08 2010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

NOEL PHILLIPE SCOTT, No. 07-16583

Petitioner - Appellant, D.C. No. CV-05-02646-JW

v.
MEMORANDUM *
D. K. SISTO,

Respondent - Appellee.

Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding

Submitted February 16, 2010 **

Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

California state prisoner Noel Phillipe Scott appeals pro se from the district

court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We

have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

*
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).

DAT/Research
 Scott contends that the district court erred by denying him statutory tolling.

This contention fails because the California superior court denied Scott’s petition

as untimely, and therefore his state petition was not “properly filed,” as required by

28 U.S.C. § 2244(d)(2). See Pace v. DiGuglielmo, 554 U.S. 408, 417 (2005); see

also Townsend v. Knowles, 562 F.3d 1200, 1205 (9th Cir. 2009).

Scott further contends that he was entitled to equitable tolling because his

delays in filing were caused by his lack of access during various time periods to his

legal materials, and the law library. The district court did not err by determining

that he was not entitled to equitable tolling because he failed to meet his burden of

demonstrating that extraordinary circumstances rather than his own lack of

diligence caused the untimeliness of his federal habeas petition. See Waldron-

Ramsey v. Pacholke, 556 F.3d 1008, 1013-14 (9th Cir. 2009).

AFFIRMED.

DAT/Research 2 07-16583