Suarez

MEMORANDUM **

California state prisoner Jose Alfredo Suarez (“Suarez”) appeals the district court’s denial of his 28 U.S.C. § 2254 petition as untimely. The petition challenges his jury trial conviction for second-degree murder, attempted first degree murder, and related weapons offenses. We have jurisdiction pursuant to 28 U.S.C. § 2253 . We affirm.

The district court properly dismissed Suarez’s first petition when requested by Suarez to do so. Notwithstanding, Suarez contends the second petition, which is the subject of this appeal, is not time-barred because it “relates back” to the first petition. Suarez is incorrect.

A new federal habeas petition filed after the dismissal without prejudice of an earlier federal habeas petition cannot be deemed to “relate back” to the filing date of the earlier petition. Henry v. Lungren, 164 F.3d 1240,1241 (9th Cir.1999).

The statute of limitations was tolled between the filing of Suarez’s first habeas petition in the California Superior Court on August 15, 1996, and the California Court of Appeal’s denial of the petition on January 7, 1997. See § 2244(d)(2). Yet Suarez is not entitled to “gap tolling” between the California Court of…