                                                                           FILED
                             NOT FOR PUBLICATION                            APR 15 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



FRANK MICHAEL PEREA,                             No. 08-16527

               Petitioner - Appellant,           D.C. No. 2:07-cv-02028-ROS

  v.

PAULA SOELLE; et al.,                            MEMORANDUM *

               Respondents - Appellees.



                     Appeal from the United States District Court
                              for the District of Arizona
                      Roslyn O. Silver, District Judge, Presiding

                              Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       Former Arizona state prisoner Frank Michael Perea appeals pro se from the

district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as

untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

          *
             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).
      Perea contends he is entitled to equitable tolling because an assistant federal

public defender, not representing him, provided an outdated courthouse mailing

address that caused him to file his habeas petition late. We agree with the district

court that Perea has not demonstrated that an extraordinary circumstance beyond

his control prevented him from timely filing his habeas petition, or that he has been

pursuing his rights diligently. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);

see also Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2002).

      We construe Perea’s additional arguments as a motion to expand the

certificate of appealability. So construed, the motion is denied. See 9th Cir. R.

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

(per curiam).

      AFFIRMED.




                                          2                                    08-16527
