Lawrence Cox v. Larry Small
Opinion
Opinion
MEMORANDUM
California state prisoner Lawrence Cox appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction under 28 U.S.C. § 2253 , and we affirm.
Cox contends that the district court erred in dismissing his petition as untimely. He argues that he is entitled to both statutory and equitable tolling. As for statutory tolling, the district court properly ruled that since Cox’s third petition was dismissed as untimely, it was not properly filed so as to be considered “pending” pursuant to 28 U.S.C. § 2244 (d)(2), and therefore, statutory tolling was unwarranted. See Pace v. DiGuglielmo, 544 U.S. 408, 417 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005). Cox’s contention that California’s timeliness rule is not an adequate state procedural rule, is foreclosed by Walker v. Martin, — U.S. —, —, 131 S.Ct. 1120, 1128-30 , 179 L.Ed.2d 62 (2011). The district court properly ruled that Cox failed to show that he was unaware of the facts underlying his claim of ineffective assistance of counsel at the time of his jury trial. See Hasan v. Galaza, 254 F.3d 1150, 1154-55 (9th Cir.2001).