Woodruff

MEMORANDUM ***

Earnest T. Woodruff appeals the district court’s dismissal of his habeas corpus petition. The district court determined that Woodruff had not filed within the one year statute of limitations. See 28 U.S.C. § 2244 (d)(1). We affirm.

Woodruff makes a number of arguments, but what this case boils down to is the question of whether the statute of limitations should have been tolled during the time that a prior dismissed habeas corpus petition was pending in the district court. In general, the statute of limitations is not tolled during the pendency of a prior federal habeas corpus petition. See Duncan v. Walker, 533 U.S. 167, 181-82 , 121 S.Ct. 2120, 2129 , 150 L.Ed.2d 251 (2001). That is true, even if the statute of limitations ran while the prior petition was pending. See Fail v. Hubbard, 272 F.3d 1133, 1135-36 (9th Cir.2001).

Thus, absent equitable tolling, Woodruff cannot proceed. He asserts that he is entitled to equitable tolling because the district court improperly dismissed his first petition on the basis that the claims were unexhausted. 1 If his prior petition had both exhausted and unexhausted claims, he would have a good point. See James v. Pliler, 269…