Samad v. Adams

MEMORANDUM ^**

Appellant Alamin Samad (Samad) challenges the district court’s dismissal of his petition for writ of habeas corpus as time-barred, arguing that, pursuant to Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002), the federal statute of limitations was statutorily tolled while he sought collateral review in the state courts of California.

Assuming that the mailbox rule applies, Samad’s contentions still lack merit. Samad’s petition filed on November 7, 2002, was denied by the California Superior Court as “successive” and “untimely.” Therefore, his petition was not “properly filed” and did not toll the federal statute of limitations. See Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Consequently, Samad’s federal petition filed on June 21, 2004, was untimely.¹

Our recent decision in Harris v. Carter, 515 F.3d 1051, 1057 (9th Cir.2008), applying equitable tolling where the Petitioner relied on our pre-Pace precedent to determine when to file his federal petition, does not alter our holding in this case. In Harris, the Petitioner expressly argued his reliance on our precedent. Id. at 1052. No similar argument was made by Samad.

We decline to address the uncertified issues in this case because Samad has not satisfied his burden of showing “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right ...” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

AFFIRMED.

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

1 . Because the untimeliness of the petition filed in November, 2002, renders statutory tolling unavailable, we need not address Sa-mad’s subsequent state court petitions.