                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              AUG 04 2010

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

GREGORY LYNN NORWOOD,                            No. 07-55044

              Petitioner - Appellant,            D.C. No. CV-99-07315-SVW

  v.
                                                 MEMORANDUM*
BILL LOCKYER, Attorney General,

              Respondent - Appellee,

WILLIAM SULLIVAN, et al.,

              Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                            Submitted August 2, 2010**
                               Pasadena, California




        *
             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).
Before: RYMER, KLEINFELD, *** and GRABER, Circuit Judges.

      Gregory Lynn Norwood appeals the district court’s dismissal of his 28

U.S.C. § 2254 habeas corpus petition. We deferred submission pending a response

by the California Supreme Court to our request for certification in Chaffer v.

Prosper, 542 F.3d 662 (9th Cir. 2008) (order) (Chaffer I), and issuance of the

mandate in Waldrip v. Hall, 548 F.3d 729 (9th Cir. 2008), cert. denied, 130 S. Ct.

2415 (2010). As both events have now happened, and the parties have furnished

supplemental briefs, we resubmit the case. We affirm.

      Whether Norwood is entitled to “gap tolling” follows from our decision in

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

delay here, 181 days (or even a few days less, as Norwood claimed in district

court), is far more than the period most states allow; also, his petitions offered no

persuasive justification for the delay. Chaffer II, 592 F.3d at 1048; see also

Waldrip, 548 F.3d at 731.

      Nor is Norwood entitled to equitable tolling. He failed to carry his “heavy

burden” of showing diligence and some extraordinary circumstance that stood in


       ***
             The Honorable Ann Aldrich was originally a member of this panel.
She died prior to circulation of this memorandum disposition and, pursuant to
General Order 3.2(g), Judge Kleinfeld was drawn as replacement. Judge Kleinfeld
was provided the briefs and other materials received by the other members of the
panel.
                                           2
the way. Chaffer II, 592 F.3d at 1048. He offered no explanation for delay when

filing in the California Court of Appeal, even though required by that court to do

so, and subsequent explanations (limited law library access, being moved to

different cells, temporary lockdowns) do not show circumstances that are out of the

ordinary for prison life or that would have made it “impossible” to file on time. Id.

at 1049; Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). We need not decide

Norwood’s alternative contention based on California’s indeterminate standard, as

he was not diligent in any event. See Waldron-Ramsey v. Pacholke, 556 F.3d

1008, 1013 (9th Cir.), cert. denied, 130 S. Ct. 244 (2009). And, as in Chaffer II,

Norwood shows no basis for equitably tolling the time for filing his federal petition

based on his reading of California’s timeliness rules. See 592 F.3d at 1049.

      To the extent Norwood argues that the state waived the statute of limitations

and the district court abused its discretion in allowing the state to pursue it, we

disagree. Even if the issue is within the certificate of appealability, Norwood

points to nothing in the record suggesting that the state intelligently or strategically

waived the issue such that the district court lacked discretion to consider it. See

Day v. McDonough, 547 U.S. 198, 202, 211 (2006). Likewise, the state made no

pertinent concession. Further, the state did not waive the defense by failing to re-




                                           3
raise it until after Evans v. Chavis, 546 U.S. 189 (2006), was decided. See

Waldrip, 548 F.3d at 733.

      Finally, we see no reason why the district court should have held an

evidentiary hearing, see id. at 737, or why the timeliness questions in this case

should be certified to the California Supreme Court. That was already done in

Chaffer I, and the supreme court made its position clear.

      AFFIRMED.




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