Clarke Lowe v. James Tilton , 390 F. App'x 709 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CLARKE SHELDON LOWE, No. 08-56737
Petitioner - Appellant, D.C. No. 3:07-cv-02232-LAB
v.
MEMORANDUM *
JAMES E. TILTON, Secretary, California
Department of Corrections and
Rehabilitation,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted July 19, 2010 **
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
*
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).
California state prisoner Clarke Sheldon Lowe appeals 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 1, and we affirm.
Lowe contends that he is entitled to statutory tolling under 28 U.S.C.
§ 2244(d)(2). We agree with the district court’s determination that Lowe failed to
demonstrate that he is entitled to statutory tolling for the period between the
Superior Court’s decision denying his state habeas petition and the filing of his
petition in the California Court of Appeal. See Chaffer v. Prosper, 592 F.3d 1046,
1048 (9th Cir 2010) (per curiam) (holding that petitioner is not entitled to statutory
tolling “[b]ecause Chaffer’s filing delays were substantially longer than the 30 to
60 days that most States allow for filing petitions”) (internal quotation marks
omitted).
AFFIRMED.
1
We certify for appeal, on our own motion, the issue of whether Lowe’s
habeas petition was timely filed.
2 08-56737