Opinion
No. 06-15079.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed February 23, 2007.
Michael Rene Perez, Corcoran, CA, pro se.
Brian R. Means, Office of the California Attorney General, Sacramento, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, Senior District Judge, Presiding. D.C. No. CV-04-02138-LKK.
Before: BEEZER, FERNANDEZ, and McKEOWN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
California state prisoner Michael Rene Perez appeals pro se from the district court's judgment dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the one-year limitations period is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2).
Perez is not entitled to statutory tolling for the seven-year interval between his first and second state petitions. See Welch v. Carey, 350 F.3d 1079, 1082-83 (9th Cir. 2003) (en banc) (concluding that the interval between state petitions was not tolled when the second petition abandoned the claims raised in the first petition and embarked on a new and different round of state court review).
Furthermore, even assuming that Perez is entitled to equitable tolling, see Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003) (concluding that mental incompetency justifies equitable tolling), his petition was untimely.