John Green v. Anthony Hedgpeth , 473 F. App'x 650 ( 2012 )

FILED
NOT FOR PUBLICATION MAY 22 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN GREEN, No. 11-17113
Petitioner - Appellant D.C. No. 4:10-cv-04136-CW
v. MEMORANDUM *
ANTHONY HEDGPETH, Warden
Respondent - Appellee
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Submitted May 15, 2012 **
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
California state prisoner John Green 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).
Green contends he is entitled to equitable tolling because he did not have
access to his legal files. Green has not demonstrated that an extraordinary
circumstance beyond his control prevented him from timely filing his habeas
petition, or that he has been pursuing his rights diligently. See Holland v. Florida,
130 S. Ct. 2549, 2562 (2010); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir.
2010) (per curiam) (petitioner bears the “heavy burden” of showing that he
diligently pursued his rights and that an extraordinary circumstance stood in his
way).
We construe Green’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); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per
curiam).
AFFIRMED.
2 11-17113