                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 22 2012

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




                            FOR THE NINTH CIRCUIT



JOHN GREEN,                                      No. 11-17113

               Petitioner - Appellant            D.C. No. 4:10-cv-04136-CW

  v.                                             MEMORANDUM *

ANTHONY HEDGPETH, Warden

               Respondent - Appellee



                    Appeal from the United States District Court
                       for the Northern District of California
                    Claudia A. Wilken, District Judge, Presiding

                             Submitted May 15, 2012 **

Before:        CANBY, GRABER, and M. SMITH, Circuit Judges.

       California state prisoner John Green 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.




          *
             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).
        Green contends he is entitled to equitable tolling because he did not have

access to his legal files. Green 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 Holland v. Florida,

130 S. Ct. 2549, 2562 (2010); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir.

2010) (per curiam) (petitioner bears the “heavy burden” of showing that he

diligently pursued his rights and that an extraordinary circumstance stood in his

way).

        We construe Green’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                                   11-17113
