Omar Sharrieff Gay v. A. HEDGPETH, Warden

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OMAR SHARRIEFF GAY,
Petitioner - Appellant,
v.
A. HEDGPETH, Warden,
Respondent - Appellee.
No. 10-55727
D.C. No. 2:09-cv-02113-DDP
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted December 19, 2011**
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
California state prisoner Omar Sharrieff Gay appeals pro se from the district
court’s judgment dismissing his 28 U.S.C. § 2254 petition because he failed to
meet the requirements for the filing of a successive habeas petition, and because it
was untimely. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
FILED
DEC 21 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-55727 2
The district court granted a certificate of appealability with respect to
whether Gay satisfied the requirements of 28 U.S.C. § 2244(b) for filing a second
or successive petition, but denied one with respect to whether the petition was
untimely. We may affirm on any ground supported by the record. See McCormick
v. Adams, 621 F.3d 970, 975 (9th Cir. 2010). The district court properly concluded
that Gay’s habeas petition was untimely because it was filed more than twelve
years after the Antiterrorism and Effective Death Penalty Act’s limitations period
had ended, and Gay has failed to demonstrate that he is entitled to either statutory
or equitable tolling. See 28 U.S.C. § 2244(d)(2); see also Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005).
We construe Gay’s additional arguments as a motion to expand the
certificate of appealability. So construed, the motion is denied. See 9th Cir. R.
22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per
curiam).
Gay’s motion for appointment of counsel is denied.
AFFIRMED.

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