                                                                             FILED
                            NOT FOR PUBLICATION                               JUN 18 2010

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




                            FOR THE NINTH CIRCUIT



ROBERT E. GALLEGOS, Sr.,                          No. 08-17255

               Petitioner - Appellant,            D.C. No. 2:04-cv-02741-MCE

  v.
                                                  MEMORANDUM *
D. K. SISTO, Warden and ALISON ELLE
ALEMAN,

               Respondents - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                  Morrison C. England, Jr., District Judge, Presiding

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       California state prisoner Robert E. Gallegos, Sr. appeals 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).
      Gallegos contends that he is entitled to equitable tolling because his mental

and physical impairments prevented him from timely filing his habeas petition.

This contention fails because Gallegos has not demonstrated that an extraordinary

circumstance beyond his control caused the untimeliness. See Gaston v. Palmer,

417 F.3d 1030, 1034-35 (9th Cir. 2005), amended on other grounds by, 447 F.3d

1165 (9th Cir. 2006).

      Gallegos’s contention that he is also entitled to equitable tolling because he

relied on a mistaken interpretation of then-existing precedent also fails. See

Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (per curiam).

      AFFIRMED.




                                          2                                      08-17255
