Ubaldo M. Gutierrez v. State of California

* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UBALDO M. GUTIERREZ,
Petitioner - Appellant,
v.
STATE OF CALIFORNIA,
Respondent - Appellee.
No. 09-55100
D.C. No. 2:07-cv-00122-MMM-
MLG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted January 10, 2011
Pasadena, California
Before: O’SCANNLAIN, W. FLETCHER, and CLIFTON, Circuit Judges.
Ubaldo Gutierrez, a California state prisoner, appeals from the district
court’s dismissal of his habeas petition as untimely under 28 U.S.C. § 2244(d)(1).
The facts are known to the parties and will not be repeated here except to the extent
necessary.
FILED
JAN 24 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 Gutierrez has waived the argument that he is entitled to statutory tolling
because the superior court did not issue a separate ruling on his coram nobis
petition. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
2 We construe Gutierrez’s opening brief as a motion to expand the certificate
of appealability to include a claim of equitable tolling, and we grant the motion.
See White v. Martel, 601 F.3d 882, 884 (9th Cir. 2010) (per curiam).
2
Gutierrez is not entitled to statutory tolling for the 134-day period between
the superior court’s denial of his habeas petition 1 and the filing of habeas and
coram nobis petitions in the court of appeal. See Chaffer v. Prosper, 592 F.3d
1046, 1048 (9th Cir. 2010) (per curiam) (holding that filing delays of 101 and 115
days did not warrant statutory tolling where the petitions offered no explanation for
the delays as required under California law).
Gutierrez is also not entitled to equitable tolling for the same 134-day
period.2 His confusion about the proper address of the court of appeal does not
constitute an “extraordinary circumstance,” but rather a “garden variety claim of
excusable neglect” that “does not warrant equitable tolling.” Holland v. Florida,
130 S. Ct. 2549, 2563–64 (2010) (internal quotation marks omitted).
AFFIRMED.

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