Carl Brown v. Joe Driver

FILED
NOT FOR PUBLICATION MAY 19 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARL E. BROWN, No. 13-35026
Petitioner - Appellant, D.C. No. 3:11-cv-00150-RRB
v.
JOE D. DRIVER, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief Judge, Presiding
Submitted May 13, 2015**
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
Alaska state prisoner Carl E. Brown 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. We review de novo the district court’s
decision that a Section 2254 habeas petition is untimely, see Bills v. Clark, 628
F.3d 1092, 1096 (9th Cir. 2010), 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).
Brown contends that he is entitled to equitable tolling for three periods:
December 6, 2009 to April 5, 2010; October 12, 2010 to November 1, 2010; and
November 8, 2000 to April 14, 2011. Even assuming that Brown is entitled to
equitable tolling for the first two periods, he is not entitled to equitable tolling on
the last, rendering his section 2254 petition untimely.
Brown contends that Jimenez v. Quarterman, 555 U.S. 113 (2009), entitles
him to equitable tolling from November 8, 2010 to April 14, 2011. Brown is
incorrect. The Alaska Court of Appeals order did not restore the pendency of
Brown’s direct appeal, nor render his conviction capable of modification on direct
appeal to the state court or to the Supreme Court on certiorari review. See Randle
v. Crawford, 604 F.3d 1047, 1056-57 (9th Cir. 2010). Jimenez therefore does not
apply. See id.
We need not reach the issue of whether the mailbox rule applies to Brown’s
state court filings, as it does not affect the result. Brown’s petition is untimely
regardless of whether the mailbox rule is applied.
Finally, because we affirm on timeliness grounds, we do not address whether
Brown’s failure to name the proper party separately justifies affirmance.
AFFIRMED.
2 13-35026