Ervin v. Marshall

MEMORANDUM ^**

California state prisoner Wallace Ervin appeals pro se from the district court’s order dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Ervin contends he is entitled to statutory tolling of the Antiterrorism and Effective Death Penalty Act’s one-year statute of limitations pursuant to 28 U.S.C. § 2244(d)(2). However, because the California Superior Court rejected Ervin’s habeas petition as untimely, it was not “properly filed,” and he is not entitled to statutory tolling under § 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.