Provencio v. Henry

MEMORANDUM *** California state prisoner Karen Diane Provencio appeals from the district court’s denial of her habeas petition as time-barred under 28 U.S.C. § 2244 (d)(1). We affirm. Provencio first argues that AEDPA’s limitations period should have been tolled for the ninety-day period during which she could have filed a petition for a writ of certiorari in the United States Supreme Court. This argument is foreclosed by the Supreme Court’s recent decision in Lawrence v. Florida, — U.S. -, 127 S.Ct. 1079 , 166 L.Ed.2d 924 (2007). In that ease, the Court held that AEDPA’s limitations period is statutorily tolled “only while state courts review [a petitioner’s] application [for post-conviction relief].” See id. at 1083 (emphasis added). Because “[a petition for certiorari before the Supreme Court] is not a part of a ‘State’s post-conviction procedures,’ ” § 2244(d)(2) does not toll AEDPA’s limitations period during the pendency of such a petition. See id. (quoting 28 U.S.C. § 2244 (d)(2)). *744 Alternatively, Provencio argues that she is entitled to equitable tolling because at the time she filed her federal petition, there was a “lack of clarity” in the law as to whether AEDPA’s limitations period is tolled by certiorari petitions filed with the Supreme Court. This argument also lacks merit. At the time Provencio filed her petition, the law of this circuit — as well as the majority of other circuits — clearly held that AEDPA’s limitations period is not tolled by the filing of such a petition. See, e.g., White v. Klitzkie, 281 F.3d 920, 924-25 (9th Cir.2002); Nara v. Frank, 264 F.3d 310, 318-19 (3d Cir.2001); Snow v. Ault, 238 F.3d 1033, 1035 (8th Cir.2001); Gutierrez v. Schomig, 233 F.3d 490, 490-91 (7th Cir.2000); Coates v. Byrd, 211 F.3d 1225 , 1227 (11th Cir.2000); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999); see also Lawrence, 127 S.Ct. at 1085 (rejecting petitioner’s equitable tolling argument because “[t]he settled state of the law at the relevant time belie[d] any claim to legal confusion”). The fact that Provencio is able to point to one case reaching a contrary result, see Abela v. Martin, 348 F.3d 164 (6th Cir.2003) (en banc), is not sufficient to give rise to the type of “extraordinary circumstances” required to justify equitable tolling in this circuit. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003) (holding that equitable tolling is permitted only if “extraordinary circumstances beyond a [defendant’s] control make it impossible to file a petition on time”) (quoting Brambles v. Duncan, 330 F.3d 1197, 1202 (9th Cir.2003)) (internal quotation marks omitted). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.