Hyland

MEMORANDUM **

Arthur Ellen Hyland, III, appeals the district court’s dismissal with prejudice of his federal habeas corpus petition brought pursuant to 28 U.S.C. § 2254 (a). We have jurisdiction under 28 U.S.C. § 1291 , and affirm.

Hyland argues that he is entitled to statutory tolling under 28 U.S.C. § 2244 (d)(2) for the almost eleven month period between the California Court of Appeal’s denial of his third state habeas petition on June 1, 1998 and his filing of a fourth state habeas petition in the California Court of Appeal on April 26, 1999. Although tolling is appropriate while each petition was pending, no tolling is allowable for the interim. During that period Hyland pursued discovery motions that the California courts lacked jurisdiction to hear. See People v. Gonzalez, 51 Cal.3d 1179, 1284 , 275 Cal.Rptr. 729 , 800 P.2d 1159 (1990). These motions do not toll the statute because none was a “properly filed application” for purposes of § 2244(d)(2). Nor was Hyland’s third state petition “pending” until his fourth one was filed. Both were filed in the California Court of Appeal, at the same level of the collateral review structure. Cf. Carey v. Saffold, — U.S. -, 122…