Free Mandate of 9th Circuit - District Court of Arizona - Arizona

I . UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT B
CHARLES EDWARD WHITE, JR., No. 04-17430
D.C. No. CV-03-01401-SRB
Petitioner - Appellant, `
p - v. p
JUDGMENT 1
DORA B. SCHRIRO, Director; et al., ‘ `
Respondents - Appellees. _ . , ‘
Appeal from the United States District Court for the District of Arizona
(Phoenix).
This cause came on to be heard on the Transcript ofthe Record from the
United States District Court for the District of Arizona (Phoenix) and was duly
submitted. I
On consideration whereof, it is now here ordered and adjudged by this
Court, that the judgment of the said District Court in this cause be, and hereby is
AFFIRMED.
Filed and entered 02/23/06 :‘T I.?/IVF?/EATF:).f£/ies I
W I
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Case 2:O3—cv—O1401—SFlB Document 24 Filed O5/O3/2006 Page 1 of 4

I * H . A A SM-
**· .
‘ NOT FOR PUBLICATION FEB 23 2006
UNITED STATES COURT OF APPEALS CATH; Ig, &%1;i·g§§pP¤§Ai§Enx
- FOR THE NINTH CIRCUIT
CHARLES EDWARD WHITE, JR., No. 04-17430
Petitioner - Appellant,
D.C. No. CV-03-01401-SRB pg
y DORA B. SCHRIRO, etal., MEMORANDUIVF
Respondents - Appellees. · l _
Appeal from the United States District Court l
for the District of Arizona -
Susan R. Bolton, District Judge, Presiding
summed February 16, 2006**
- San Francisco, Califomia
l Before: ALARCON and McKEOWN, Circuit Judges, and HOLLAND,m
Senior District Judge. A A- - 6 ~- 6 P A. lipn pv:_ {
° 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 Cincuit Rule 36-3. `
" This panel unanimously finds this case suitable for decision without oral
argument. -
M The Honorable I-I. Russel Holland, Senior District Judge for the District
of Alaska, sitting by designation. `
Case 2:O3—cv—O1401—SFlB Document 24 Filed 05/O3/2000 Page 2 of 4

Arizona state prisoner Charles Edward White, Jr. appeals the district court's
order dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction
I pursuant to 28 U.S.C. § 2253,. and we affirm.
"We review the dismissal of ia habeas petition on statute of limitations
grounds de novo." , 260 F.3d 1039, 1042 (9th Cir. 2001). The
one-year statute of limitations for the filing of a federal habeas petition is
· statutorily tolled while "a properly filed application for State post-convictiormr C- A .·
other collateral review with respect to the pertinent judgment orclairn is pending. .
. ." 28 U.S.C. § 2244(d)(2). The district court did not err in determining that
White’s first petition for post-conviction relief ceased to be pending on June 15, C
· 2000. Neither ofthe two cases relied on by White, State v. Jones, 897 P.2d 734
(Ariz. Ct. App. 1995), and §mte v. Em ett, 912 P.2d 1357 (Ariz. Ct. App. 1995),
support his contention that an Arizona post—conviction proceeding remains e
p ‘ pending until the court of appeals issues a mandate.
- The distriet courtealse.-did not err in determining-that=»White-was net entitled - a 4
to equitable tolling. "If` the facts underlying a claim for equitable tolling are
undisputed, as they are here, we also review de novo whether the statute of
p lirnitations should be equitably tolled." Bramble; v, During, 412 F .3d 1066, 1069
(9th Cir. 2005). "The one-year statute of limitations prescribed in the AEDPA
Case 2:03-cv-01401-SRB . Document 24 Filed O5/O3/2006 Page 3 of 4

7 may be equitably tolled if 'extraordinary circumstances beyond a prisoner's control
make it impossible to tile a petition on time.'" ld, (quoting Miles v, Pgqnty, 187 3
F.3d 1104, 1107 (9th Cir. 1999)). White points to two circumstances that he
contends are extraordinary and made it impossible for him to tile his petition on
time: 1) the Arizona Court of Appeals, in its April 3, 2003 letter, represented that l
the end ofthe statutory tolling period was July 12, 2000, not June 15, 2000, and 2)
l he never received a copy ofthe final order or mandate irointhe Arizona _ l C 77 H
‘ Appeals denying his second petition for post-conviction relief Neither of these
two events qualify as an extraordinary circumstance that would have made it
impossible for White to timely file his § 2254 petition.
7 AFFIRMED. .
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