                                                                               FILED
                    UNITED STATES COURT OF APPEALS                             AUG 29 2012

                                                                            MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                            U.S. COURT OF APPEALS




JERRY FRED HAMILTON,                             No. 09-17600

              Petitioner - Appellant,            D.C. No. 2:09-CV-01411-MCE-
                                                 CMK
  v.                                             Eastern District of California,
                                                 Sacramento
MAURICE JUNIOUS,

              Respondent - Appellee.             ORDER AMENDING
                                                 MEMORANDUM DISPOSITION
                                                 AND DENYING PETITION FOR
                                                 REHEARING EN BANC


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

       The Memorandum Disposition filed on June 15, 2012, is AMENDED as

follows:

       On page 2 of the Memorandum Disposition, the word “summary,” which

modified the California Court of Appeal’s dismissal of Hamilton’s petition, is

deleted. The modified sentenced now reads: “The California Court of Appeal’s

dismissal of the petition with citations to In re Steele, 32 Cal. 4th 682, 692 (2004)

and In re Steele, 32 Cal. 4th 682, 692 (2004) and In re Hillery, 202 Cal. App. 2d.

293 (1962) did not undo the superior court’s determination that Hamilton’s petition

was untimely.
       An amended Memorandum Disposition will be filed simultaneously with

this order.

       Judge Rawlinson and Judge Ikuta voted to deny the petition for rehearing en

banc. Judge Nelson recommended denial of the petition for rehearing en banc.

       The full court has been advised of the petition for rehearing en banc, and no

active judge has requested a vote on whether to rehear the matter en banc. Fed. R.

App. P. 35.

       The petition for rehearing en banc is DENIED. No further petitions for

rehearing and/or rehearing en banc will be entertained.




                                          2
                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              AUG 29 2012

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

JERRY FRED HAMILTON,                             No. 09-17600

              Petitioner - Appellant,            D.C. No. 2:09-CV-01411-MCE-
                                                 CMK
  v.

MAURICE JUNIOUS,                                 AMENDED MEMORANDUM*

              Respondent - Appellee.


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

                            Submitted June 12, 2012**
                             San Francisco, California

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

       Petitioner Jerry Fred Hamilton appeals the summary dismissal of his habeas

petition as untimely and the denial of his motion for stay and abeyance as moot.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 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).
      Hamilton’s petition is untimely. The Anti-Terrorism and Effective Death

Penalty Act (AEDPA) governs this petition. Woodford v. Garceau, 538 U.S. 202,

210 (2003). AEDPA’s one-year statute of limitations expired on April 21, 2009.

28 U.S.C. § 2244(d)(1)(A). Hamilton did not file his petition until May 19, 2009.

      Statutory tolling does not apply. The superior court denied Hamilton’s

March 9, 2009, petition as untimely and on the merits. An untimely petition is not

properly filed and, therefore, cannot toll AEDPA’s limitations period. Pace v.

DiGuglielmo, 544 U.S. 408, 417 (2005). The California Court of Appeal’s

dismissal of the petition with citations to In re Steele, 32 Cal. 4th 682, 692 (2004)

and In re Hillery, 202 Cal. App. 2d. 293 (1962), did not undo the superior court’s

determination that Hamilton’s petition was untimely. Nor do Ylst v. Nunnemaker,

501 U.S. 797 (1991), Campbell v. Henry, 614 F.3d 1056 (9th Cir. 2010), or

Trigueros v. Adams, 658 F.3d 983 (9th Cir. 2011) apply to save the petition from

the timeliness bar.

      Because the petition is untimely, the district court did not err in denying

Hamilton’s motion for stay and abeyance as moot.

      Finally, we construe Hamilton’s briefing on the uncertified issue that we

should deem the claim exhausted and remand for consideration on the merits as a

motion to expand the certificate of appealability. Schardt v. Payne, 414 F.3d 1025,


                                          2
1032 (9th Cir. 2005) (discussing 9th Cir. R. 22-1(e)). Hamilton has failed to make

“a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Nor has he “‘demonstrate[d] that the issues are debatable among

jurists of reason; that a court could resolve the issues [in a different manner]; or

that the questions are adequate to deserve encouragement to proceed further.’”

Doe v. Woodford, 508 F.3d 563, 567 (9th Cir. 2007) (quoting Barefoot v. Estelle,

463 U.S. 880, 893 n.4 (1983)). Accordingly, we dismiss Hamilton’s uncertified

issue for lack of jurisdiction. Id. at 569.

      AFFIRMED.




                                              3
