FILED
NOT FOR PUBLICATION APR 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STEVEN BOYD HARPER, No. 07-56428
Petitioner - Appellant, D.C. No. CV-06-01683-JM(PCL)
v.
MEMORANDUM *
KEN CLARK,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Submitted December 16, 2009 **
Before: SKOPIL, LEAVY and T.G. NELSON, Circuit Judges.
Steven Boyd Harper, a California state prisoner, appeals the district court’s
dismissal of his federal habeas petition for failure to comply with the one-year
statute of limitations of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2244(d)(1). We have jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
A habeas petition is timely if filed within AEDPA’s one-year statute of
limitation period. 28 U.S.C. § 2244(d)(1). A petition can also be timely, even if
filed after the one-year time period has expired, when tolling applies. See Tillema
v. Long, 253 F.3d 494, 498 (9th Cir. 2001). Harper contends he is entitled to such
tolling because he did not receive notice of the California Supreme Court’s
decision denying his state petition.
The State has submitted evidence, however, which indicates Harper did
receive notice of the California Supreme Court’s decision. Harper does not dispute
the accuracy of this evidence. In fact, it is corroborated by other evidence he
submitted to the district court. Because the State’s evidence demonstrates that the
issues before this court are entirely without merit and a remand to the district court
would waste judicial resources, we affirm the judgment of the district court.
We deny Harper’s motion to strike the evidence from the record.
AFFIRMED.
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