Davy Pough v. John Marshall

FILED
NOT FOR PUBLICATION MAR 01 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

DAVY KELVIN POUGH, No. 09-56644

Petitioner - Appellant, D.C. No. 3:08-cv-01776-BTM

v.
MEMORANDUM *
JOHN MARSHALL, Warden;
MATTHEW CATE, Director,

Respondents - Appellees.

Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding

Submitted February 21, 2012 **

Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

California state prisoner Davy Kelvin Pough appeals pro se from the district

court’s dismissal of 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).
 Pough first contends that he is entitled to equitable tolling. However, Pough

has failed to establish that his petition was untimely because of “extraordinary

circumstances” beyond his control. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th

Cir. 2003). The district court did not abuse its discretion in denying Pough an

evidentiary hearing. See Schriro v. Landrigan, 550 U.S. 465, 474-75 (2007).

Pough also contends that he is entitled to statutory tolling. This argument

fails because his state court habeas petitions were filed either before the limitations

period began or after it had expired. No state court petition was pending during the

time the federal habeas statute of limitations was running. See 28 U.S.C.

§ 2244(d)(2); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (a state

petition does not reinitiate a limitations period that ended before the petition was

filed).

Pough’s motion to amend his opening brief for clarity, filed on September

28, 2011, is denied. Pough’s notice of motion for release on his own recognizance

pending appeal, filed on November 4, 2011, is denied as moot.

AFFIRMED.

2 09-56644