Javier Flores v. A. P. KANE and 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NOT FOR PUBLICATION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
JAVIER FLORES,
Petitioner - Appellant,
v.
A. P. KANE and BEN CURRY,
Respondents - Appellees.
No. 09-15476
D.C. No. 4:05-cv-03932-CAW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
California state prisoner Javier Flores 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.
FILED
SEP 27 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Flores contends the district court erred by concluding that his federal habeas
petition was untimely. The district court properly weighed the evidence
concerning the filing date of Flores’s federal habeas petition and did not err in
determining the filing date. See Houston v. Lack, 487 U.S. 266, 275-76 (1988);
see also Huizar v. Carey, 273 F.3d 1220, 1224 (9th Cir. 2001) (prison’s log of
outgoing mail provides “strong evidence” of the date a petitioner handed over his
habeas petition to prison officials for mailing to the district court).
Flores is not entitled to equitable tolling because he has not demonstrated
that an extraordinary circumstance beyond his control prevented him from timely
filing his federal habeas petition. See Miranda v. Castro, 292 F.3d 1063, 1068
(9th Cir. 2002) (attorney’s miscalculation of limitations period and her negligence
in general do not constitute extraordinary circumstances sufficient to warrant
equitable tolling); Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (petitioner
not entitled to equitable tolling simply because he remained in administrative
segregation and had limited access to law library and copy machine). Because
Flores is not entitled to equitable tolling, his federal habeas petition was untimely.
See 28 U.S.C. § 2244(d)(1).
Finally, we construe Flores’s additional arguments as a motion to expand the
certificate of appealability. So construed, the motion is denied. See 9th Cir.

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R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999)
(per curiam).
AFFIRMED.

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