Andrew Brinkley v. JAMES E. TILTON, Director of Corrections and Rehabilitation

* 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NOT FOR PUBLICATION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
ANDREW BRINKLEY,
Petitioner - Appellant,
v.
JAMES E. TILTON, Director of
Corrections and Rehabilitation,,
Respondent - Appellee.
No. 07-16784
D.C. No. CV-06-02189-
GEB/GGH
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted January 28, 2010 **
Before: FARRIS, HALL, and LEAVY, Circuit Judges.
California state prisoner James Andrew Brinkley appeals pro se from the
district court’s judgment dismissing his 28 U.S.C. § 2254 petition. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.
FILED
MAR 26 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 07-16784
Brinkley contends the district court erred in dismissing his § 2254 petition as
untimely because he is entitled to statutory and equitable tolling. This contention
lacks merit.
We review de novo, and we may affirm on any ground supported by the
record. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003); Weaver v.
Thompson, 197 F.3d 359, 362 (9th Cir. 1999).
Brinkley’s conviction became final on April 22, 2004. Cal. Rules of Ct.,
Rules 8.264 (formerly Rule 24), 8.268(c) (formerly Rule 25), 8.366 (formerly Rule
33.1) and 8.500(e) (formerly Rule 28). Brinkley’s § 2254 petition was due under
the AEDPA one-year statute of limitations by April 22, 2005. 28 U.S.C.
§ 2244(d)(1)(A); Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). There
is no basis to apply statutory tolling because the one-year limitations period had
already expired by the time Brinkley filed his first state petition on May 16, 2005.
See 28 U.S.C. § 2244(d)(2); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).
Nor has Brinkley established a basis for equitable tolling because he has not
demonstrated that he pursued his claims with diligence or that extraordinary
circumstances prevented him from timely filing his § 2254 petition. Pace v.

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1 Brinkley’s motion for judicial notice of lodged documents is denied as
moot.
3 07-16784
DiGuglielmo, 544 U.S. 408, 418 (2005); Miranda v. Castro, 292 F.3d 1063, 1065-
66 (9th Cir. 2002). 1
AFFIRMED.

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