Robert Lee Fryburger v. Ben Curry

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NOT FOR PUBLICATION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
ROBERT LEE FRYBURGER,
Petitioner - Appellant,
v.
BEN CURRY,
Respondent - Appellee.
No. 10-15202
D.C. No. 3:09-cv-00975-MHP
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding
Submitted January 10, 2011**
Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.
FILED
JAN 21 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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We grant Fryburger’s request to certify for appeal the issue of whether the1
district court properly dismissed the section 2254 petition as untimely. The state
has fully briefed the issue that we certify for appeal.
10-15202 2
California state prisoner Robert Lee Fryburger appeals pro se 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.1
Fryburger contends that his petition was timely. However, he is not entitled
to statutory gap tolling because the twenty-two month delay between the California
Court of Appeal’s denial of his habeas petition and the date he filed his California
Supreme Court habeas petition was unreasonable. See Evans v. Chavis, 546 U.S.
189, 201 (2006) (unexplained, and hence unjustified, six-month filing delay not
reasonable); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per curiam)
(petitioner not entitled to statutory tolling because delays of 115 days and 110 days
between the filing of petitions were unreasonable). Further, the petitions he filed
or attempted to file during this twenty-two month delay do not entitle him to
statutory tolling. See Duncan v. Walker, 533 U.S. 167, 180-81 (2001) (pending
federal habeas petition does not statutorily toll limitation period); White v. Martel,
601 F.3d 882, 883-84 (9th Cir. 2010) (per curiam) (statutory tolling unavailable
when a state petition is deemed untimely). Because more than one year elapsed
between the California Court of Appeal decision and the date Fryburger filed his

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10-15202 3
habeas petition in the California Supreme Court, his federal habeas petition was
untimely. See 28 U.S.C. § 2244(d)(1).
Fryburger is not entitled to equitable tolling because he has not demonstrated
that an “extraordinary circumstance” prevented him from timely filing his habeas
petition. See Holland v. Florida, 130 S. Ct. 2549, 2562 (2010).
AFFIRMED.

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