James Porter v. Robert Horel

MEMORANDUM

California state prisoner James Richard Porter (“Porter”) appeals the district court’s dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus as untimely.

Porter does not dispute that his petition was filed outside of the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2244 (d). Porter argues that the statute of limitations should be tolled, or that he is entitled to an" evidentiary hearing to allow him to establish the requirements for equitable tolling. Because the history and facts of the case are familiar to the parties, we need not recount them here.

We affirm the district court’s denial of Porter’s petition as untimely, and the district court’s denial of an evidentiary hearing. A district court’s denial of habe-as corpus for untimeliness is reviewed de novo. Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir.2003). Although Porter originally argued in his brief for both statutory and equitable tolling of the statute of limitations in this ease, he later narrowed his grounds for relief to only equitable tolling. Equitable tolling may be established when a petitioner can show “(1) that he…