Garcia v. Kane

MEMORANDUM ** California state prisoner James G. Garcia appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 petition as time-barred. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we affirm. Garcia contends that he is entitled to statutory tolling during the time period from when he filed his first state post-conviction petition until the time the California Supreme Court denied his third petition filed in that court. Because Garcia’s third petition was denied on procedural grounds, the district court did not err in concluding that it was not part of the earlier round of filings and did not toll the statute of limitations. See King v. Roe, 340 F.3d 821, 823 (9th Cir.2003) (per cu-riam); see also Pace v. DiGuglielmo, 544 U.S. 408, 413 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005). Garcia contends that he is entitled to equitable tolling of the statute of limitations because the district court affirmatively misled him regarding the implications of dismissing his previously-filed 28 U.S.C. § 2254 petition. We reject this contention because the district court in the previous case presented accurate options available *159 to Garcia. See Brambles v. Duncan, 412 F.3d 1066, 1070-71 (9th Cir.2005). The motion of appellant’s counsel Shakti Murthy, Esq., to withdraw as appointed counsel is granted. Murthy shall serve this memorandum disposition on appellant Garcia and shall, within 14 days of the filing date of this order, file a proof of service with this court. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.