Romero v. Gay, et al, No. 07-16353 (9th Cir. 2011)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JAN 19 2011 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS DANIEL ELOY ROMERO, Plaintiff - Appellant, No. 07-16353 D.C. No. CV-04-00825-FJM v. MEMORANDUM* GAY; ARIZONA ATTORNEY GENERAL, Respondents - Appellees. Appeal from the United States District Court for the District of Arizona Frederick J. Martone, District Judge, Presiding Submitted January 12, 2011** San Francisco, California Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges. Arizona state prisoner Daniel Eloy Romero appeals from the district court s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The district court did not err by finding that Romero s federal habeas petition is barred by the one-year statute of limitations of 28 U.S.C. § 2244(d)(1). Romero is not entitled to statutory tolling under 28 U.S.C. § 2244(d)(2) because his February 2003 letter requesting sentence clarification can not be construed as a properly filed application for State post-conviction relief or other collateral review . . . . 28 U.S.C. § 2244(d)(2). Furthermore, Romero is not entitled to equitable tolling because he has failed to demonstrate the existence of extraordinary circumstances beyond his control that made it impossible for him to file a petition on time. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). In light of the foregoing disposition, we decline to consider the merits of Romero s argument regarding the denial of earned release credits. AFFIRMED. 2

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