Elder

Elder v. California Department of Corrections

Good Law
18 F. App'x 540
United States Court of Appeals for the Ninth CircuitAugust 29, 2001No. 00-17314; D.C. No. CV-99-01517-LKKCalifornia462 words

Opinion

Lead Opinion

MEMORANDUM **

California state prisoner Kenneth Charles Elder appeals pro se from the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition on statute of limitation grounds. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we affirm.

We review de novo a district court’s dismissal of a habeas petition on statute of limitation grounds. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999). We also review de novo a district court’s decision regarding equitable tolling. Id.

Elder contends that his petition was timely filed because he filed it within one year after the California Supreme Court denied his state petition. The AED-PA one-year statute of limitations period, however, began to run against Elder on August 10, 1997, the date on which his state court judgment became final. 28 U.S.C. § 2244 (d)(1)(A). Excluding the time during which his state petition was pending before the California Supreme Court, Elder’s federal petition should have been filed no later than January 26, 1999. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.1999) (holding that statute of limitations is tolled until the California Supreme Court rejects petitioner’s collateral *542…

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