Kelley

MEMORANDUM **

Washington state prisoner Ned L. Kelley appeals pro se the district court’s sua sponte dismissal of his 28 U.S.C. § 2254 habeas corpus petition as time-barred under 28 U.S.C. § 2244 (d). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo the district court’s dismissal of a habeas petition on statute of limitations grounds, Herbst v. Cook, 260 F.3d 1039 , -, -(9th Cir.2001), and we affirm.

In Herbst , we concluded that a district court may dismiss sua sponte a habeas petition on statute of limitations grounds so long as the court provides the petitioner adequate notice of its intent to dismiss and an opportunity to respond. Id. at -. Here, Kelley was provided adequate notice by the magistrate’s order to show cause and its report and recommendation, which both recommended dismissal under § 2244(d), and an opportunity to respond through the filing of a response to the order to show cause and objections to the report and recommendation. Therefore the district court’s dismissal of Kelley’s petition was within its authority. Id.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit…