FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROMEL VALENTINO WHITE, No. 08-16387
Petitioner-Appellant, D.C. No.
v.
2:06-cv-02840-JKS-
EFB
MIKE MARTEL, Warden,
Respondent-Appellee. ORDER AND
OPINION
Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, Senior District Judge, Presiding
Argued and Submitted
March 9, 2010—San Francisco, California
Filed April 7, 2010
Before: J. Clifford Wallace, Susan P. Graber and
M. Margaret McKeown, Circuit Judges.
Per Curiam Opinion
5305
WHITE v. MARTEL 5307
COUNSEL
Charles M. Bonneau, II, Esq., Sacramento, California, for
petitioner-appellant Romel Valentino White.
Justain P. Riley, Esq., Deputy State Attorney General, Sacra-
mento, California, for respondent-appellee Mike Martel, War-
den.
ORDER
This order redesignates the memorandum filed on March
19, 2010, as a published per curiam opinion.
OPINION
PER CURIAM:
Petitioner White appeals from the district court’s dismissal
of his habeas petition as untimely. We review a district
court’s denial of a habeas corpus petition de novo. Gonzalez
v. Brown, 585 F.3d 1202, 1206 (9th Cir. 2009). We have
jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
I.
[1] The Anti-Terrorism and Effective Death Penalty Act of
1996 (AEDPA) has a one-year statute of limitations for
habeas cases by persons in custody pursuant to a state court
judgment. 28 U.S.C. § 2244(d)(1). The AEDPA statute of
limitations may be tolled for the time during which a “prop-
erly filed” state habeas petition is pending. Id. § 2244(d)(2).
The Supreme Court has made it clear that “[w]hen a postcon-
viction [habeas] petition is untimely under state law, that is
the end of the matter for purposes of § 2244(d)(2).” Pace v.
5308 WHITE v. MARTEL
DiGuglielmo, 544 U.S. 408, 414 (2005) (internal quotation
marks omitted). Such a petition is not “properly filed” so as
to trigger statutory tolling. Id. at 417. We have held that, pur-
suant to Pace, tolling under section 2244(d)(2) is unavailable
where a state habeas petition is deemed untimely under Cali-
fornia’s timeliness standards. Bonner v. Carey, 425 F.3d
1145, 1149 (9th Cir. 2005). Here, California state courts
determined that White’s state habeas petition was untimely
under state law. Therefore, there was no “properly filed” state
petition, and White was not entitled to statutory tolling of
AEDPA’s one-year statute of limitations during the time
period when those state habeas proceedings were pending.
White argues that California’s timeliness rule is not an “ad-
equate” procedural bar because it is vague, ambiguous, and
inconsistently applied. However, the adequacy analysis used
to decide procedural default issues is inapplicable to the issue
of whether a state petition was “properly filed” for purposes
of section 2244(d)(2). See Zepeda v. Walker, 581 F.3d 1013,
1018 (9th Cir. 2009). White’s reliance on procedural bar case
law is misplaced. Id. at 1018 n.3. White is not entitled to stat-
utory tolling of the AEDPA statute of limitations.
II.
White argues alternatively that equitable tolling should
apply to render his federal habeas petition timely. We con-
strue this argument as a motion to expand the Certificate of
Appealability in this case to include the issue of equitable toll-
ing, and we grant the motion. See Ninth Circuit Rule 22-1(e).
We review de novo the question of whether a statute of limi-
tations should be equitably tolled. Harris v. Carter, 515 F.3d
1051, 1054 (9th Cir.), cert. denied, 129 S. Ct. 397 (2008).
[2] White’s primary argument for equitable tolling is that
Pace overruled earlier Ninth Circuit case law and that, until
this court’s mandate issued in Bonner, he reasonably relied on
earlier circuit precedent that would have tolled the AEDPA
WHITE v. MARTEL 5309
statute of limitations for the entire time that he was seeking
state habeas relief. To qualify for equitable tolling, petitioners
“must demonstrate that they have been pursuing their rights
diligently and that some extraordinary circumstance stood in
their way.” Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006)
(internal quotation marks and alterations omitted).
[3] Bonner was decided on October 6, 2005. White’s state
petition was first held untimely on January 6, 2006. Bonner’s
mandate issued on March 20, 2006. Yet White waited until
December 14, 2006—more than 14 months after Bonner,
more than 11 months after the state superior court held his
state petition untimely, and almost nine months after the Bon-
ner mandate—to file his federal petition. The Supreme Court
in Pace acknowledged that “a petitioner trying in good faith
to exhaust state remedies may litigate in state court for years
only to find out at the end that he was never ‘properly filed,’
and thus that his federal habeas petition is time barred,” but
suggested that “[a] prisoner . . . might avoid this predicament
. . . by filing a ‘protective’ petition in federal court and asking
the federal court to stay and abey the federal habeas proceed-
ings until state remedies are exhausted.” 544 U.S. at 416
(some internal quotation marks omitted). White insists that
such a stay and abeyance might have been denied, and that
this course of action would have been pointless or even detri-
mental. But by January 6, 2006, White had little to lose in fil-
ing in federal court and seeking a stay and abeyance, because
by then he knew (a) that his state petition had been held
untimely by the state superior court, and (b) that, under Bon-
ner, the state court ruling of untimeliness would preclude toll-
ing of the AEDPA statute of limitations—yet he waited until
December 14, 2006, to act in federal court. Such a delay does
not demonstrate the diligence required for application of equi-
table tolling. We hold that White’s case does not warrant an
application of equitable tolling.
White has asked that we take judicial notice of certain facts
in support of his equitable tolling argument: (1) the Bonner
5310 WHITE v. MARTEL
docket sheet; (2) proceedings in another California habeas
case; and (3) state bar records reflecting disciplinary proceed-
ings against White’s former counsel. Those facts are appropri-
ate for judicial notice, and we therefore grant White’s request.
See United States v. 14.02 Acres of Land, 547 F.3d 943, 955
(9th Cir. 2008); Dawson v. Mahoney, 451 F.3d 550, 551 n.1
(9th Cir. 2006) (order); Corder v. Gates, 104 F.3d 247, 248
n.1 (9th Cir. 1996). However, the facts that are the subject of
White’s requests for judicial notice do not alter our analysis
of his entitlement to equitable tolling.
III.
Finally, White argues that, as to one of his state habeas
claims, the state superior court did not make an untimeliness
finding but instead dismissed the claim on its merits; there-
fore, statutory tolling operates to render his federal habeas
petition timely as to that claim. We do not reach this argu-
ment. White does not appear to have made this argument in
the district court; his opposition to the motion to dismiss does
not suggest that one claim in his state habeas petition might
stand in a different legal posture than the others as to untime-
liness. Generally, arguments not raised before the district
court are waived on appeal. O’Guinn v. Lovelock Corr. Ctr.,
502 F.3d 1056, 1063 n.3 (9th Cir. 2007). Also, this issue is
not encompassed by the Certificate of Appealability, and we
will not expand the certificate to include it.
AFFIRMED.