James Arthur Mulgrew v. M. McDONALD, 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NOT FOR PUBLICATION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
JAMES ARTHUR MULGREW,
Petitioner - Appellant,
v.
M. McDONALD, Warden,
Respondent - Appellee.
No. 09-17737
D.C. No. 2:09-cv-00767-MCE
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted July 17, 2012**
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
California state prisoner James Arthur Mulgrew appeals from the district
court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We
have jurisdiction under 28 U.S.C. § 2253, and we affirm.
Mulgrew contends that the district court erred in dismissing his petition as
FILED
JUL 19 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

09-17737 2
untimely. We need not decide whether Mulgrew was entitled to any form of
tolling to render his petition timely because the district court lacked jurisdiction to
consider the petition. See 28 U.S.C. § 2254(a); Bailey v. Hill, 599 F.3d 976, 982
(9th Cir. 2010) (“§ 2254(a) does not confer jurisdiction over a state prisoner’s
in-custody challenge to a restitution order imposed as part of a criminal sentence”);
Washington v. Lampert, 422 F.3d 864, 869 (9th Cir. 2005) (reviewing court may
affirm on any ground supported by the record).
AFFIRMED.

-- 2 of 2 --