Carl Mitchell v. Calvin Chappell

FILED
NOT FOR PUBLICATION JAN 28 2016

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARL D. MITCHELL, No. 15-15721

Petitioner - Appellant, D.C. No. 2:12-cv-00296-MCE

v.
MEMORANDUM*
CALVIN CHAPPELL, Warden,

Respondent - Appellee.

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief Judge, Presiding

Submitted January 20, 2016**

Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.

California state prisoner Carl D. Mitchell appeals pro se from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have

jurisdiction under 28 U.S.C. § 2253. We review de novo the district court’s denial

of a habeas petition as untimely, see Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir.

*
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).
2009), and we affirm.

In his only certified claim on appeal, Mitchell argues that the Supreme

Court’s decision in Magwood v. Patterson, 561 U.S. 320 (2010), reset the one-year

statute of limitations period to file a habeas petition under 28 U.S.C.

§ 2244(d)(1)(C). Mitchell’s reliance on Magwood is misplaced; Magwood

interpreted the phrase “second or successive” as used in section 2244(b), and it did

not newly recognize a constitutional right that has been made retroactively

applicable to cases on collateral review. See § 2244(d)(1)(C); Magwood, 561 U.S.

at 331-36.

We treat Mitchell’s briefing of additional arguments as a motion to expand

the certificate of appealability. So treated, the motion is denied. See 9th Cir. R.

22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999).

AFFIRMED.

2 15-15721