Robert Mason v. JAMES WALKER, Warden

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NOT FOR PUBLICATION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 MASON,
Petitioner - Appellant,
v.
JAMES WALKER, Warden,
Respondent - Appellee.
No. 10-57047
D.C. No. 3:09-cv-01551-JM
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Submitted December 19, 2011**
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
California state prisoner Robert Mason 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
DEC 27 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

10-57047 2
The district court granted Mason a certificate of appealability on the
question of whether his habeas petition was properly dismissed as untimely.
Mason does not address the timeliness of his habeas petition in his appellate briefs.
Accordingly, he has waived the issue. See Smith v. Marsh, 194 F.3d 1045, 1052
(9th Cir. 1999). Moreover, even if the issue were not waived, Mason’s federal
habeas petition was untimely. See 28 U.S.C. § 2244(d)(1) (one-year statute of
limitations for an application for a writ of habeas corpus for a person in state
custody). The unexplained 356-day delay between the denial of his habeas petition
in San Diego Superior Court and his filing of a habeas petition in the California
Court of Appeal was unreasonable. See Velasquez v. Kirkland, 639 F.3d 964, 967-
968 (9th Cir. 2011) (holding that unexplained gaps of 91 and 81 days were
unreasonable). Accordingly, Mason is not entitled to statutory tolling of AEDPA’s
one-year statute of limitations during the gap between his state court filings. See
28 U.S.C. § 2244(d)(2). Mason’s federal habeas petition was filed 295 days after
the statute of limitations for the claims at issue in this appeal expired.
AFFIRMED.

-- 2 of 2 --