Scrofani v. Chrones

MEMORANDUM *** John Joseph Scrofani appeals pro se from the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. We affirm. The one-year limitations period imposed by the Antiterrorism and Effective Death Penalty Act of 1996 is tolled while “a properly filed application for State post-conviction or other collateral review with respect *728 to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244 (d)(1) and (2). A state habeas petition denied as untimely is not “properly filed” for the purpose of statutory tolling. Pace v. DiGuglielmo, 544 U.S. 408, 410 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005). Because Scrofani’s state habeas petition was denied as untimely by the California Supreme Court, it was not properly filed and Scrofani was not entitled to statutory tolling under 28 U.S.C. § 2244 (d)(2). See Bonner v. Carey, 425 F.3d 1145, 1148-49 (9th Cir.2005), amended by 439 F.3d 993 (9th Cir.2006), cert. denied, — U.S.-, 127 S.Ct. 132 , 166 L.Ed.2d 97 (2006). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.