Daniel Eloy Romero v. Gay; Arizona Attorney General

* 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NOT FOR PUBLICATION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
DANIEL ELOY ROMERO,
Plaintiff - Appellant,
v.
GAY; ARIZONA ATTORNEY
GENERAL,
Respondents - Appellees.
No. 07-16353
D.C. No. CV-04-00825-FJM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted January 12, 2011 **
San Francisco, California
Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges.
Arizona state prisoner Daniel Eloy Romero appeals from the district court’s
judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have
jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
FILED
JAN 19 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
The district court did not err by finding that Romero’s federal habeas
petition is barred by the one-year statute of limitations of 28 U.S.C. § 2244(d)(1).
Romero is not entitled to statutory tolling under 28 U.S.C. § 2244(d)(2) because
his February 2003 letter requesting sentence clarification can not be construed as a
“properly filed application for State post-conviction relief or other collateral
review . . . .” 28 U.S.C. § 2244(d)(2). Furthermore, Romero is not entitled to
equitable tolling because he has failed to demonstrate the existence of
extraordinary circumstances beyond his control that made it impossible for him to
file a petition on time. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).
In light of the foregoing disposition, we decline to consider the merits of
Romero’s argument regarding the denial of earned release credits.
AFFIRMED.

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