                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 21 2011

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




                            FOR THE NINTH CIRCUIT



ROBERT LEE FRYBURGER,                            No. 10-15202

               Petitioner - Appellant,           D.C. No. 3:09-cv-00975-MHP

  v.
                                                 MEMORANDUM *
BEN CURRY,

               Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Northern District of California
                     Marilyn H. Patel, District Judge, Presiding

                            Submitted January 10, 2011 **

Before:        BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.




          *
             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).
      California state prisoner Robert Lee Fryburger 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. § 2253,1 and we affirm.

      Fryburger contends that his petition was timely. However, he is not entitled

to statutory gap tolling because the twenty-two month delay between the California

Court of Appeal’s denial of his habeas petition and the date he filed his California

Supreme Court habeas petition was unreasonable. See Evans v. Chavis, 546 U.S.

189, 201 (2006) (unexplained, and hence unjustified, six-month filing delay not

reasonable); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per curiam)

(petitioner not entitled to statutory tolling because delays of 115 days and 110 days

between the filing of petitions were unreasonable). Further, the petitions he filed

or attempted to file during this twenty-two month delay do not entitle him to

statutory tolling. See Duncan v. Walker, 533 U.S. 167, 180-81 (2001) (pending

federal habeas petition does not statutorily toll limitation period); White v. Martel,

601 F.3d 882, 883-84 (9th Cir. 2010) (per curiam) (statutory tolling unavailable

when a state petition is deemed untimely). Because more than one year elapsed

between the California Court of Appeal decision and the date Fryburger filed his


      1
         We grant Fryburger’s request to certify for appeal the issue of whether the
district court properly dismissed the section 2254 petition as untimely. The state
has fully briefed the issue that we certify for appeal.

                                           2                                     10-15202
habeas petition in the California Supreme Court, his federal habeas petition was

untimely. See 28 U.S.C. § 2244(d)(1).

      Fryburger is not entitled to equitable tolling because he has not demonstrated

that an “extraordinary circumstance” prevented him from timely filing his habeas

petition. See Holland v. Florida, 130 S. Ct. 2549, 2562 (2010).

      AFFIRMED.




                                         3                                   10-15202
