RONALD DEAN McCALL v. SHARON BLACKETTER, Superintendent of Eastern Oregon Correctional Institution

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NOT FOR PUBLICATION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
RONALD DEAN McCALL,
Petitioner - Appellant,
v.
SHARON BLACKETTER,
Superintendent of Eastern Oregon
Correctional Institution,
Respondent - Appellee.
No. 08-35705
D.C. No. 3:06-cv-01059-GMK
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Submitted June 29, 2010**
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Oregon state prisoner Ronald Dean McCall 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.
FILED
JUL 23 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-35705 2
McCall contends that he is entitled to equitable tolling because his counsel
failed to file his state petition for post-conviction relief in time to preserve his right
to seek federal habeas relief. This contention fails because McCall has not
demonstrated diligence or that an extraordinary circumstance beyond his control
prevented him from timely filing his habeas petition. See Lawrence v. Florida, 549
U.S. 327, 336-37 (2007); cf. Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003).
McCall’s contention that he is entitled to an evidentiary hearing on the issue of
equitable tolling also fails. See Tapia v. Roe, 189 F.3d 1052, 1058 (9th Cir. 1999).
We construe McCall’s briefing of additional issues 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).
AFFIRMED.

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