Jacob Bowman v. Kevin Milyard ( 2010 )

FILED
NOT FOR PUBLICATION FEB 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JACOB BOWMAN, No. 09-35255
Petitioner - Appellant, D.C. No. 2:08-cv-00743-RAJ
v.
MEMORANDUM *
KEVIN MILYARD, Warden for Sterling
Corr. Facility,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted February 1, 2010
Seattle, Washington
Before: ALARCÓN, W. FLETCHER and RAWLINSON, Circuit Judges.
Petitioner-Appellant Jacob Bowman appeals the district court’s decision
denying his habeas petition. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The statute of limitations began to run on February 5, 2001, as soon as
Bowman’s conviction became final on direct appeal. Bowman’s state court
Personal Restraint Petition was not filed for more than a year after that date. The
Washington Supreme Court’s decision, In re Bowman, 172 P.3d 681 (Wash. 2007),
was not a “fact” within the meaning of 28 U.S.C. § 2244(d)(1)(D). Neither Redd v.
McGrath, 343 F.3d 1077, 1081-82 (9th Cir. 2003), nor Shelby v. Bartlett, 391 F.3d
1061, 1062 (9th Cir. 2004), supports Bowman’s contention that the Washington
Supreme Court’s decision served as the factual predicate in his case. Bowman’s
petition was not timely filed under 28 U.S.C. § 2244(d)(1).
Bowman has not met his burden of showing that equitable tolling is
appropriate in this case. He has not demonstrated that any extraordinary
circumstances beyond his control prevented him from filing a timely petition. See
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Harris v. Carter, 515 F.3d 1051,
1055 (9th Cir. 2008).
AFFIRMED.
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