                                                                             FILED
                              NOT FOR PUBLICATION                             DEC 21 2011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



OMAR SHARRIEFF GAY,                                No. 10-55727

                Petitioner - Appellant,            D.C. No. 2:09-cv-02113-DDP
    v.

A. HEDGPETH, Warden,                               MEMORANDUM *

                Respondent - Appellee.



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

                            Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

         California state prisoner Omar Sharrieff Gay appeals pro se from the district

court’s judgment dismissing his 28 U.S.C. § 2254 petition because he failed to

meet the requirements for the filing of a successive habeas petition, and because it

was 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).
      The district court granted a certificate of appealability with respect to

whether Gay satisfied the requirements of 28 U.S.C. § 2244(b) for filing a second

or successive petition, but denied one with respect to whether the petition was

untimely. We may affirm on any ground supported by the record. See McCormick

v. Adams, 621 F.3d 970, 975 (9th Cir. 2010). The district court properly concluded

that Gay’s habeas petition was untimely because it was filed more than twelve

years after the Antiterrorism and Effective Death Penalty Act’s limitations period

had ended, and Gay has failed to demonstrate that he is entitled to either statutory

or equitable tolling. See 28 U.S.C. § 2244(d)(2); see also Pace v. DiGuglielmo,

544 U.S. 408, 418 (2005).

      We construe Gay’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).

      Gay’s motion for appointment of counsel is denied.

      AFFIRMED.




                                           2                                      10-55727
