                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                               FILED
                            FOR THE NINTH CIRCUIT                                 DEC 06 2011

                                                                            MOLLY C. DWYER, CLERK
                                                                                U.S. COURT OF APPEALS

HUNG VIET VU,                                     No. 10-16686

              Petitioner - Appellant,             D.C. No. 2:07-cv-00495-MCE-
                                                  GGH
  v.

RICHARD KIRKLAND                                  MEMORANDUM*

              Respondents - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                   Morrison C. England, District Judge, Presiding

                            Submitted October 13, 2011**
                              San Francisco, California

Before: HUG, KLEINFELD, and W. FLETCHER, Circuit Judges.



       The district court did not abuse its discretion in declining to accept

Appellant’s untimely habeas petition nunc pro tunc to a timely date. See Marx v.


        *
             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).
Loral Corp., 87 F.3d 1049, 1054 (9th Cir. 1996) (applying abuse of discretion

standard to nunc pro tunc order). The district court weighed all relevant

factors—including the fault attributable to Appellant and Appellant’s attorney in

filing the petition beyond the one-year statute of limitations—and concluded that

the totality of factors weigh against accepting the petition nunc pro tunc.

See Martinez v. Court of Appeal, 528 U.S. 152, 162 (2000) (“[T]he trial judge is

under no duty to provide personal instruction on courtroom procedure or to

perform any legal ‘chores’ for the defendant that counsel would normally carry

out.”); cf. Anthony v. Cambra, 236 F.3d 568, 574 n.1 (9th Cir. 2000) (finding

district court acted within its discretion when it corrected its own error by

accepting untimely habeas petition nunc pro tunc). Further, the district court did

not err in concluding that dismissal of the petition would not work a harsh result

because the claims in the untimely petition lacked probable merit. See Martin v.

Henley, 452 F.2d 295, 299 (9th Cir. 1971) (“The power to amend nunc pro tunc is

a limited one, and may be used only where necessary to correct a clear mistake and

prevent injustice.”).



      AFFIRMED.




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