Robert Gallegos, Sr. v. D. Sisto , 384 F. App'x 650 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT E. GALLEGOS, Sr., No. 08-17255
Petitioner - Appellant, D.C. No. 2:04-cv-02741-MCE
v.
MEMORANDUM *
D. K. SISTO, Warden and ALISON ELLE
ALEMAN,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
California state prisoner Robert E. Gallegos, Sr. 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, 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).
Gallegos contends that he is entitled to equitable tolling because his mental
and physical impairments prevented him from timely filing his habeas petition.
This contention fails because Gallegos has not demonstrated that an extraordinary
circumstance beyond his control caused the untimeliness. See Gaston v. Palmer,
417 F.3d 1030, 1034-35 (9th Cir. 2005), amended on other grounds by, 447 F.3d
1165 (9th Cir. 2006).
Gallegos’s contention that he is also entitled to equitable tolling because he
relied on a mistaken interpretation of then-existing precedent also fails. See
Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (per curiam).
AFFIRMED.
2 08-17255