                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 08 2011

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



                           FOR THE NINTH CIRCUIT


GERARDO LOPEZ,                                   No. 08-56176

              Petitioner - Appellant,            2:07-cv-06954-ODW-JTL

  v.
                                                 MEMORANDUM*
LARRY SMALL, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    Otis D. Wright, District Judge, Presiding

                      Argued and Submitted October 6, 2010
                              Pasadena, California

Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.

       The California Superior Court’s dismissal of Lopez’s state habeas petition

was the last-reasoned decision regarding this petition, and accordingly we look

through the opinions of the California Court of Appeal and California Supreme

Court, which affirmed the Superior Court’s denial without explanation. See Ylst v.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Nunnemaker, 501 U.S. 797, 803, 806 (1991). We conclude that when the

California Superior Court stated that “[a]s to matters alleged to have occurred in

2002, [Lopez] [did] not disclose[] the reasons for delaying the presentation of these

facts to the court,” it was denying Lopez’s state habeas petition as untimely. See

Bonner v. Carey, 425 F.3d 1145, 1148–49 (9th Cir. 2005), amended on other

grounds by 439 F.3d 993 (9th Cir. 2006). Because the California courts dismissed

Lopez’s petition as untimely, it was not “properly filed” for purposes of AEDPA,

and Lopez is not entitled to tolling under 28 U.S.C. § 2244(d)(2). Id. Accordingly,

none of the time before or during the superior court’s consideration of that petition

is statutorily tolled. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). As a result,

Lopez’s federal habeas petition is time-barred under AEDPA’s one-year statute of

limitations. 28 U.S.C. § 2244(d)(2). Because we affirm the district court on this

ground, we need not address whether Lopez is eligible for equitable tolling of the

six-month period between his filing of his habeas petitions with the superior court

and court of appeal. See generally Holland v. Florida, 130 S. Ct. 2549 (2010).

      AFFIRMED.




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