Toby Bishop v. Sheryl Foster

MEMORANDUM

Petitioner Toby Lynn Bishop appeals from the district court’s dismissal of his habeas petition as untimely. For the reasons that follow, we affirm.

1. Reviewing de novo, Zepeda v. Walker, 581 F.3d 1013,1016 (9th Cir.2009), we hold that Petitioner is not entitled to statutory tolling under 28 U.S.C. § 2244 (d)(2). “Because the state court rejected petitioner’s [state post-conviction] petition as untimely, it was not ‘properly filed,’ and he is not entitled to statutory tolling under § 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 417 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005); see also Townsend v. Knoioles, 562 F.3d 1200, 1205 (9th Cir.2009) (same), cert. denied, — U.S. -, 130 S.Ct. 193 , 175 L.Ed.2d 121 (2009). Petitioner argues that he is not subject to that rule because the Nevada Supreme Court applied a new rule. But “whether a condition to filing is firmly established and regularly followed is irrelevant. Instead, where a state court rejects a petition for failure to comply with conditions of filing, that is the end of the matter.” Zepeda, 581 F.3d at 1018 (citation and internal quotation marks omitted).

2. The district court did not abuse its discretion in…