Davy Kelvin Pough v. JOHN MARSHALL, Warden; MATTHEW CATE, Director

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NOT FOR PUBLICATION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
DAVY KELVIN POUGH,
Petitioner - Appellant,
v.
JOHN MARSHALL, Warden;
MATTHEW CATE, Director,
Respondents - Appellees.
No. 09-56644
D.C. No. 3:08-cv-01776-BTM
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Submitted February 21, 2012**
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
California state prisoner Davy Kelvin Pough appeals pro se from the district
court’s dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
FILED
MAR 01 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-56644 2
Pough first contends that he is entitled to equitable tolling. However, Pough
has failed to establish that his petition was untimely because of “extraordinary
circumstances” beyond his control. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th
Cir. 2003). The district court did not abuse its discretion in denying Pough an
evidentiary hearing. See Schriro v. Landrigan, 550 U.S. 465, 474-75 (2007).
Pough also contends that he is entitled to statutory tolling. This argument
fails because his state court habeas petitions were filed either before the limitations
period began or after it had expired. No state court petition was pending during the
time the federal habeas statute of limitations was running. See 28 U.S.C.
§ 2244(d)(2); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (a state
petition does not reinitiate a limitations period that ended before the petition was
filed).
Pough’s motion to amend his opening brief for clarity, filed on September
28, 2011, is denied. Pough’s notice of motion for release on his own recognizance
pending appeal, filed on November 4, 2011, is denied as moot.
AFFIRMED.

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