McNeil v. Lamarque

MEMORANDUM^**

California state prisoner Shannon McNeil appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as time-barred. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Reviewing de novo, Miles v. Prunty, 187 F.3d 1104,1105 (9th Cir.1999), we affirm.¹

McNeil is not entitled to equitable tolling because he has not alleged “extraordinary” circumstances that prevented a timely filing. See Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 541 (9th Cir.1998) (en banc). He also is not entitled to a finding of a State-created impediment because the prison did not violate his constitutional right of access to the courts. See 28 U.S.C. § 2244(d)(1)(B); Lewis v. Casey, 518 U.S. 343, 356-57, 360, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (stating that the Constitution is satisfied so long as inmates have the basic “capability” of presenting their grievances to the courts). Thus, the district court correctly concluded that McNeil’s petition is time-barred. See 28 U.S.C. § 2244(d)(1).

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . We grant McNeil’s motion to broaden the certificate of appealability.