Donald Linaman v. Jack Palmer ( 2011 )

FILED
NOT FOR PUBLICATION DEC 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DONALD LINAMAN, No. 09-16961
Petitioner - Appellant, D.C. No. 3:08-cv-00364-LRH
v.
MEMORANDUM *
JACK PALMER; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted December 19, 2011**
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Nevada state prisoner Donald Linaman appeals from the district court’s
judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely and
unexhausted. We have jurisdiction pursuant to 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).
Linaman contends that the district court erred when it found that his petition
was untimely and unexhausted. The district court did not err when it determined
that the petition was untimely. See 28 U.S.C. § 2244(d); Artuz v. Bennett, 531 U.S.
4, 8 (2000) (a petition is “properly filed” when the petition’s “delivery and
acceptance are in compliance with the applicable laws and rules governing filings”
in that state). Nor did the district court err in concluding that the petition was
unexhausted based on Linaman’s failure to fairly present a federal claim to the
state court. See Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en
banc).
AFFIRMED.
2 09-16961