FILED
NOT FOR PUBLICATION OCT 5 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JEREMY THOMAS CLARK, No. 10-16986
Petitioner - Appellant, D.C. No. 2:08-cv-02949-LKK
v.
MEMORANDUM *
MIKE MARTEL,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Submitted September 27, 2011 **
Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
California state prisoner Jeremy Thomas Clark appeals pro se from the
district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as
untimely. We have jurisdiction under 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).
Clark contends his petition is not subject to AEDPA’s statute of limitations,
because he is actually innocent in the sense that the Information, jury charge, and
jury verdict forms only permitted a finding of guilt for second degree murder, and
therefore he was improperly found guilty of first degree murder. The district court
properly dismissed the habeas petition as untimely as it was filed after the one-year
statutory limitations period had ended. See 28 U.S.C. § 2244(d). Clark presents no
new evidence of actual innocence sufficient to excuse his untimely filing. See Lee
v. Lampert, No. 09-35276, 2011 WL 3275947, at *6 (9th Cir. August 2, 2011).
“[A]ctual innocence means factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotation marks
omitted).
We construe appellant’s additional arguments as a motion to expand the
certificate of appealability. So construed, the motion is denied. See 9th Cir. R.
22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).
AFFIRMED.
2 10-16986