Lovell Brown v. B. Curry , 451 F. App'x 693 ( 2011 )

FILED
NOT FOR PUBLICATION OCT 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LOVELL S. BROWN, No. 09-16162
Petitioner - Appellant, D.C. No. 2:07-cv-01474-MCE
v.
MEMORANDUM *
B. CURRY, Warden and ATTORNEY
GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted September 27, 2011 **
Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
California state prisoner Lovell S. Brown appeals from the district court’s
dismissal of 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).
As the district court determined, the statute of limitations was triggered on
the date Brown’s conviction became final because Brown knew or could have
known the factual predicate of his claims by that time. See 28 U.S.C. § 2244(d)(1).
Because Brown waited over three years from that date to file his federal petition,
his claims are time-barred. See id. His state habeas petitions, which were filed
after the expiration of the statute of limitations and denied as untimely, did not toll
the statute. See 28 U.S.C. § 2244(d)(2); Jiminez v. Rice, 276 F.3d 478, 482 (9th
Cir. 2001) (federal petition is time-barred where state habeas petition is first filed
after expiration of the statute); Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (a
petition deemed untimely by the state court is not “properly filed” so as to entitle a
petitioner to statutory tolling). Moreover, Brown has not made a credible showing
of actual innocence sufficient to allow review of his time-barred claims. See Lee v.
Lampert, No. 09-35276, 2011 WL 3275947, at *2, *13 (9th Cir. Aug. 2, 2011).
We are in receipt of Brown’s letter, dated September 21, 2011. Nothing in
the letter affects the timeliness of Brown’s petition. Furthermore, state law
sentencing errors, if any, are not cognizable on habeas review. See Miller v.
Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989).
Counsel’s motion to withdraw is granted.
AFFIRMED.
2 09-16162