Larry Donnell King v. Ernest C. Roe, Warden
Opinion
Opinion
Larry Donnell King appeals pro se the dismissal of his federal habeas petition as time-barred under 28 U.S.C. § 2244 (d)(1). We review de novo, Patter son v. Stewart, 251 F.3d 1243, 1245 (9th Cir.2001), and affirm.
King’s first petition to the California Supreme Court was denied without prejudice with citations to two cases that require that one must allege with sufficient particularity the facts warranting habeas relief and allow amendment to comply. See In re Swain, 34 Cal.2d 300, 304 , 209 P.2d 793 (1949), People v. Duvall, 9 Cal.4th 464, 474 , 37 Cal.Rptr.2d 259 , 886 P.2d 1252 (1995).
To determine whether King is entitled to tolling of the period between the denial of this petition and the commencement of his next series of petitions,' we apply a two-part test. First, we ask whether the petitioner’s subsequent petitions are limited to an elaboration of the facts relating to the claims in the first petition. If not, these petitions constitute a “new round” and the gap between the rounds is not tolled. Biggs v. Duncan, 339 F.3d 1045 , 2003 WL 21911087 (9th Cir.2003). But if the petitioner simply attempted to correct the deficiencies, then the petitioner is still…