                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                              MAR 17 2010

                                                                           MOLLY C. DWYER, CLERK
TOBY LYNN BISHOP,                                No. 09-15627                U.S. COURT OF APPEALS



             Petitioner - Appellant,             D.C. No. CV 05-00908-RLH-
                                                 GWF
  v.

SHERYL FOSTER,                                   MEMORANDUM *

             Respondent - Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                   Roger L. Hunt, Chief District Judge, Presiding

                       Argued and Submitted March 8, 2010
                            San Francisco, California

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

       Petitioner Toby Lynn Bishop appeals from the district court’s dismissal of

his habeas petition as untimely. For the reasons that follow, we affirm.

       1.    Reviewing de novo, Zepeda v. Walker, 581 F.3d 1013, 1016 (9th Cir.

2009), we hold that Petitioner is not entitled to statutory tolling under 28 U.S.C.

§ 2244(d)(2). "Because the state court rejected petitioner’s [state post-conviction]


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
petition as untimely, it was not ‘properly filed,’ and he is not entitled to statutory

tolling under § 2244(d)(2)." Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005); see

also Townsend v. Knowles, 562 F.3d 1200, 1205 (9th Cir.) (same), cert. denied,

130 S. Ct. 193 (2009). Petitioner argues that he is not subject to that rule because

the Nevada Supreme Court applied a new rule. But "whether a condition to filing

is firmly established and regularly followed is irrelevant. Instead, where a state

court rejects a petition for failure to comply with conditions of filing, that is the

end of the matter." Zepeda, 581 F.3d at 1018 (citation and internal quotation

marks omitted).

      2.     The district court did not abuse its discretion in denying Petitioner’s

motion to amend or alter the judgment under Federal Rule of Civil Procedure

59(e). See Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003) ("We

review a district court's decision on a Rule 59(e) motion to amend a judgment for

abuse of discretion."). Petitioner did not raise the issue of equitable tolling, on any

ground, until after judgment in the Rule 59(e) motion. Additionally, before the

Nevada Supreme Court, Petitioner did not argue that he had relied on an allegedly

superseded prison-mailbox rule.

      3.     During oral argument, Petitioner’s lawyer urged that Petitioner is

entitled to relief as a matter of "equal protection." To the extent that this assertion


                                            2
constituted a separate argument, we do not address arguments raised for the first

time during oral argument. Butler v. Curry, 528 F.3d 624, 642 (9th Cir.), cert.

denied, 129 S. Ct. 767 (2008).

      AFFIRMED.




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